Trespass Issues
Cases
Middleton v Humphries
Chancery Division.
11 November 1912
[1913] 47 I.L.T.R 160
Ross J.
The only question I have to decide is one of fact. I have heard all the evidence, and am not bound by the testimony of any expert, good, bad, or indifferent. I am allowed to use my own experience as to what I have seen, and what I understand about trees and such matters. I have spent a good portion of my life in the country. The one question I have to decide *160 is—What brought down the wall? The defendant has suggested that it never was a very good wall. I do not say that it was a very good wall; it was, at least, an ordinary wall, such as are to be seen surrounding residences about Shankill, and it was sufficient for the purpose for which it was built. What brought it down? To decide that I must keep in mind that the garden of Mr. Middleton is higher than that of Miss Humphries, but I am not at all satisfied that there was any such rush of water over in the direction of Miss Humphries’ garden as would sap the foundation of the wall. There is evidence that a bank of clay had been heaped up against the wall for the purpose of forming flower beds, but there is nothing in the physical conformation of the land there to suggest that the wall was knocked down by the action of water. The trees were in such a position that their roots were extending under the wall. Any tree will naturally make for the place where there is good soil. The soil of Mr. Middleton’s garden attracted them, and their roots went for it. There is not the smallest doubt that from top to bottom the wall was interlaced with the roots of these trees. I put great weight on the effect of the enormous power of growing roots on walls. It is unwise to have trees near walls. It was the growing action of the roots of the trees that brought down this wall. The order will be a declaration that the defendant wrongfully did permit the roots of certain trees to grow into the plaintiff’s wall, and thereby to injure the same. An injunction restraining the defendant from continuing to permit such injury will issue. As to the damages, I will measure them at £25, costs of the action to the plaintiff.
The Queen ( Sarah Lynch) v Justices of Balbriggan
Court of Queen’s Bench.
3 May 1871
[1871] 5 I.L.T.R 148
Whiteside, C.J.
We have heard this case very fully. The conditional order which we are called upon to make absolute, is to the effect, “that the Justices of the Peace for Balbriggan, and Edward Wilde, do within six days after service of the order, show cause why they should not enter continuances upon and hear and determine according to law and to their duty, in that behalf the matter of all and singular summonses or complaints of Sarah Lynch entered and for hearing against Edward Wilde at the Balbriggan Petty Sessions, and that the justices do every act in order to the said hearing and determination of the complaint, &c. We turn to each of two summonses before us; one of them recites that a complaint had been made that upon the 9th of January, 1871, the defendant did wilfully trespass on a certain place, called the shore of Lough Shinny, in the county of Dublin, and refused to leave said place, after having been duly warned to do so by the servant of the owner duly authorized in that behalf; and for that the defendant did again trespass on said place, within three months from the time when said warning was given him and carried off a quantity of sea weed, the property of complainant.” The decision of the justices is in these words:—“The magistrates having heard the opening statement of the case argued on the part of the plaintiff by Mr. Munroe, and on the part of the defendant by Mr. Short, unanimously decide, that in their opinion the Trespass Act, 14th and 15th Vic., c. 92, s. 8, does not apply to cases of walking or driving on the sea shore, between high and low water mark, and that with regard to the charge of carrying away sea weed, brought under the Malicious Injury Act, 24th and 25th Vic., ch 97, sec. 52, the magistrates are unanimously of opinion that the Act does not extend to cases of sea weed, and decline to go into either charge.” The section of the first Act is:—“If any person shall wilfully trespass in any field, garden, pleasure-ground, wood, plantation, or other place, and shall neglect, or refuse to leave any such place, after he shall have been warned to do so, he shall be liable to pay a fine or be imprisoned;” and by the 52nd section of the 24th and 25th Vic., ch. 97, any person who shall wilfully and maliciously commit any damage to any real or personal property, shall on conviction, be either committed to the common goal, or forfeit a sum of money, provided nothing therein contained should extend to any case where the party acted under a fair and reasonable supposition that he had a right to do the act complained of. For the purpose of this motion, the way the matter stands, is this:—The plaintiff claims the exolusive right to gather sea weed, collected between high and low water mark, and in particular to gather from a rock that stands out in the sea, and to which the weed adheres. The defendant says that he has a right to pass between high and low water, and was as much entitled to access there, as the plaintiff. In the affidavit it is sworn that one of the defendants got into the water, collected, gathered, and took away the weed, and therefore I am to infer that it is not the case of a person coming upon the property of another, and taking sea weed which she had by her industry gathered and collected and set apart for her use. At the hearing no Crown grant was produced. The plaintiff rested her case on a prescriptive right to exclude every body between high and low water. I have only to observe that such a claim is at variance with the Common Law; it lies upon the party who makes it to prove her case, and show that it is according to the rule of law—because it is clear that property of this kind, covered by the flux and reflux of the tide, is prima facie vested in the Crown, as a trustee for the public. By the 5th sec. of the 12th Vic., c. 16, it is enacted, “whereas it would conduce to the advancement of justice and render more effective and certain the performance of the duties of justices, and give them protection in the performance of the same, if some simple means, not attended with much expense, were devised, by which the legality of any act to be done by such justices might be considered and adjudged by a Court of competent jurisdiction, &c. The first fact to be ascertained is whether the magistrates have refused to do an act that was incumbent upon them. We are of opinion that they have not; they have investigated the case. The learned counsel at both sides have stated their views, and the gentlemen who presided—men of education and experience, retired to consider their decision, remained away during half an hour, and wrote an opinion, to the effect that neither within the Trespass Act, nor the Malicious and Wilful Trespass Act, did the case fall, and we are not called upon to decide whether they were exactly right or wrong, in the view they took of the case—a view taken by them advisedly and deliberately. Therefore we think they have not declined to perform an act which would justify us – the act is not obligatory—in sending the case back to them, and commanding them to do that which they have declined doing; but secondly we think that the order made by the magistrates was an adjudication, that the case which was brought before them, was not within either one Act or the other, and if they have honestly decided the case, are we, a Court of Appeal or advice, to sit in judgment upon every case that has been argued before, considered and decided by magistrates who have a jurisdiction in this respect? The magistrates had occasion to consider the bona fide claim of a party—a mere pretence would not exonerate the magistrates nor deprive them of jurisdiction—and I think the case of “ the Queen at the prosecution of the Church Wardens of Market Harborough v. Joseph Nunneley,”27 L.J., N.S. (M.C.), 260, is applicable as proved that if there is a bona fide belief on the part of a person, that he has a just right to do a certain thing, though he may be wrong in his belief, he is entitled to have a decision on his claim. [His Lordship stated the facts and decision in that case.] In the present case, apart from proof of a grant or prescription in the plaintiff, an indisputable right to progress into the sea has been claimed. When we come to inquire into the boundaries, the claimant may establish her right, but at the sameime, at person who *148 goes out to a rock in the sea, and cuts sea-weed, may have a case which will justify inquiry in a Court of Law. The cases cited, establish that if magistrates entered into a discussion of a matter, though they might take of it an erroneous view, the Court is not to say how they were to decide It is our duty to pronounce a judgment that may be enforced, not (as Lord Campbell says), to give opinions that may or may not be followed according to the discretion of the magistrate. We think those cases have a material bearing upon the question, whether we should send this case back for reconsideration by the magistrates Reference has been made to Mr Jagoe’s book, on the “Fisheries of Ireland,” from which it appears that Lynch brought his action of trespass in the Court of Exchequer in Ireland, which was tried before the present Chief Baron, who held, though the Crown had a right to the shore, that Lynch, in this particular case, had sufficient possession to resist trepassers, and directed the jury to find for the plaintiff. Lynch held under a grant of one thousand acres of land, without words to convey the shore, and failed in proving a title by prescription, consequently he was as much a trespasser as the defendant In such cases there can be no ownership until the weed is severed from the rock.” This is the opinion of Mr. Jagoe; it is not an authority, it is merely a view of the case, expressed in a treatise on the subject. I have remarked that the weed in this case, was not severed. The person, says Mr. Jagoe, who cuts the weed acquires a sufficient title in what is cut, to maintain an action of trespass against any person who disturbs the right; but while the weeds are attached to rocks, there can be no title except by grant or prescription.” He refers to a case Benest v. Pipon (Knapp’s Privy Council Cases, 60). “The Lord of the Manor,” says Mr. Jagoe, “cannot establish a claim to the exclusive right of cutting sea-weed on rocks, except by a grant from the King, or by such long and undisturbed enjoyment of it as to give him a title by prescription.” Lord Wynford, in his judgment said. “What never has had a judicial owner belongs to the Sovereign within whose territory it is situated; and it is for the person who claims an exclusive right to what grows on any particular part of the coast, to establish it, as was done in the cases referred to, and to show a title by grant or prescription.” In the case of Blundell v. Catherall, 5 Barn. & Ald. 268, the learned Chief Justice Abbott said, that “bathing in the sea, is generally speaking, a lawful purpose.” Speaking with caution, his Lordship says, it is not denied that a person may bathe in the sea. Again he says—shall the owner of the soil be allowed to bring an action against any person who may drive his carriage along those parts of the sea shore, whereby not the smallest injury is done to the owner—that is where the ownership is admittedly on the person claiming it. It is not a matter of course for proprietors to claim such a right as has been put forward here, and to say unless they really have a title, that the public can be excluded. It has been said by Mr. Munroe that magistrates, or Courts of inferior jurisdiction, are the proper tribunals before whom such cases should be tried. In my opinion I do not think such difficult questions can fairly be said to form an appropriate subject of magisterial investigation. I cannot say that the magistrates have erred in pronouncing their judgment as they have done, nor that I am dissatisfied with the reasons which they have given for their adjudication. Looking at the case, in all its aspects, and all its circumstances, we are of opinion that the order must be discharged, and where a matter has been fairly considered, all that remains to be added is discharged with costs.
O’Brien, J.
I entirely concur in the view taken of this case by the Lord Chief Justice, that the magistrates have heard and determined the matter. I shall abstain from saying whether they have acted rightly or wrongly. For some time I was under the impression that from the nature of the case, involving as it does a great many questions of law, it was not such a case as should be submitted to the consideration of magistrates. The very able argument for the defendants has satisfied me that the magistrates have already, upon a clear, distinct ground, decided this case; it is sufficient for us that they have done so, and we are not called upon to say whether they have rightly or wrongly decided. It is enough to look to the reasons which the magistrates have assigned; they have decided that the removal of seaweed did, not fall within one of the Acts, and that the rock upon the sea shore is not within the other Act. It is apparent that the magistrates have not heard any evidence, but they have heard the statement of Mr. Munroe; he stated his case fully. I doubt not that he stated it clearly, and I understand the decision of the magistrates to be that they did not think the case came within either Act of Parliament. The case is clearly within the authorities cited, and the facts warrant the order which has been made. The magistrates investigated the case; they have considered it thoroughly, and have said that they would not decide it, because it did not come within either Act of Parliament. They would not go any further; they dismissed the case upon the merits. They may have felt the difficulty as to the right on the sea shore, and were not able to say whether the right was in the subject or in the Crown. That very difficulty may have suggested to them that the Legislature had not intended to have vested in them summary jurisdiction relied on. The plaintiff here is not without her remedy, if she has a title; but the proper course should be followed. It is not for us to say what that course is. We refuse the application, the magistrates having already heard and determined the case.
George, J.
I concur in the judgment already expressed, solely upon the last ground, stated by my brother O’Brien. The magistrates have not refused to consider and decide the question; upon the contrary, they have carefully heard the case, and have referred to the two Acts of Parliament upon which the charges have been founded. They have expressly declared their opinion, and decided accordingly, that neither of the charges—the trespass upon the rock, or the taking of the seaweed from the rock, under the Malicious Trespass Act—came within the Acts of Parliament. Their decision is virtually this—“There is no use in our going into evidence, because we are of opinion that the Acts do not apply to the subject-matter of the complaint; and we decide that, in point of law, the charges are not sustainable under the Acts.” It is not a refusal to hear the case, but it is that the magistrates had heard enough to enable them to arrive at the conclusion that the charges did not come within the Acts, and they would not entertain them. The cases show, that where the magistrates have done so, and argued upon an erroneous view, the Court would not send a case back to them to adjudicate otherwise than as their consciences dictated, and according to, their views of the law. There are abundant other ways in which the decision of magistrates may be reversed, altered, or set aside. I think we should not send back the case to them for reconsideration.
McGarrigle v White
McLaughlin v White
Circuit Court.
13 March 1940
[1940] 74 I.L.T.R 228
Judge, Moonan
Judge Moonan, in the course of his judgment, said that in very few cases had he been able to come to such a perfectly convinced opinion on the facts. The railings put up by the defendant were erected in wilful disregard of the dimensions or the alignment of the adjacent plots. There was no doubt that the defendant had materially encroached upon the plots dedicated to the interment of the families of the respective plaintiffs.
Unfortunately, the learned Judge continued, that did not decide the cases upon the present proceedings. This was a Parish Churchyard and he had recently set out his view on the law in a reported case (Representative Church Body v. Crawford, 74 Ir. L. T. R. 49). There was no need to repeat it. The right of burial in a Parish Churchyard gave no ownership of the soil. In this case such ownership was vested in the Representative Church Body and it alone could bring an action for trespass. The action in the present form must accordingly be dismissed.
The learned Judge added that he did not think the plaintiffs were without a remedy. In the words of Palles, C.B., it would be “a most disastrous state of the law” if they were He (Judge Moonan) might say also, with due respect, that with the rights that had been vested by the legislature in the Representative Church Body there was also joined the correlative duty under the Irish Church Act and the Constitution of its own Church of protecting the rights of those entitled to the exclusive right of burial in the Parish Churchyard vested in it. As the merits were altogether with the plaintiffs there would be no order as to costs.
James Clune v Clare County Council
Circuit Court
24 May 1972
[1980] 114 I.L.T.R 58
The President of the Circuit Court
Civil Bill
The plaintiff’s claim in the Civil Bill was for the sum of £110 damages for loss and damage suffered and sustained by the plaintiff owing to the negligence, and breach of statutory duty, on the part of the defendants, their servants and agents, in the case, maintenance and control of a gate leading from the plaintiff’s lands to Quin Abbey and graveyard in the said county in the month of January, 1970, as a result of which the plaintiff’s bullock strayed from the plaintiff’s lands on to the lands of the Abbey and graveyard (which said lands adjoin the plaintiff’s said lands) as a result of the servant and agent of the defendants (as the caretaker with the key of the said Abbey or graveyard) or, alternatively, a third party, wrongfully causing the said gate to be left open whereupon the said bullock ate leaves or the foliage of a yew tree growing on the grounds of the Abbey and graveyard and died as a result thereof.
Alternatively, the plaintiff claimed the said sum of money as a result of wrongful nuisance caused or permitted by the defendants their servants and agents.
The defence consisted of a general denial of the averments contained in the Civil Bill and a plea that if any cattle, the property of the plaintiff, were on the grounds of Quin Abbey and graveyard they were trespassing thereon.
A list of the duties to be performed by the caretaker of Quin burial ground was provided by the defendants. Paragraph 1 of this list of duties provided as follows:—
“The caretaker shall take charge of the burial ground and become responsible to the Board of Health and Public Assistance and burial grounds committee for the general care of the burial ground according to the regulations of the Local Board dated the 6th July, 1888. He shall keep the gate of the burial ground closed as directed by the burial grounds committee and shall keep the key in a convenient place at or near the burial ground”.
In his evidence the plaintiff stated that his farm, which adjoined Quin Abbey and graveyard, was the property of his family for at least three generations. It was the Clare County Council who always maintained the fence and gate and neither he nor his family ever repaired them. It was the County Council who also maintained the path which ran through his field from the public road into the graveyard.
Mr. Michael Clune, the caretaker, said that he and his father had been caretakers of the burial ground for thirty years or more. As a caretaker he was employed by the County Council and he had to attend funerals, open and close the gates and cut the grass on the burial grund. He had, furthermore, repaired the fence and the gates on behalf of the County Couhcil. He painted the gates and capped the stone wall. The gate in question was at least thirty years old and was a solid iron gate. It was he who kept the key of the gate at his home nearby and he often gave the key to tourists and visitors. On the 5th January, 1970, the key was given to a French lady who wished to see the Abbey, and she later returned the key. The following morning he noticed that the gate had been left open and he saw seventeen cattle in the graveyard. The only yew trees in the area were the yew trees of Quin. He noticed cattle lying under the large yew tree and some of the bark had been eaten. One bullock died later and foliage of the tree had been found in its stomach. One of the two yew trees in the burial *58 ground was small and the other was huge and very ancient. The stone wall around the Abbey and graveyard was at least one hundred years old.
Gerard A. Lee for the plaintiff:
The word ‘fence’ covers every description of hedge, wall, paling and gate. A duty to fence is broken if a gate in the fence is left open after use. (Glanville L. Williams on the “Liability for Animals” (1939) p. 214).
Once the duty to fence is established it is a strict one. In the case of jlawrence v. Jenkins [ 1873] 8 L.R. Q.B. 274, it was held by a Divisional Court (Cockburn, C.J., Mellor and Archibald, J.J.) that the liability was an absolute one and that it was no excuse to the defendant that he had no notice of non-repair, or that he had used due diligence to repair or even that the breach in the fence was due to the act or default of a third party. The only defence recognised was that of act of God or vis major.
In that case the lands of the plaintiff and defendant adjoined. The defendant was under an obligation to maintain the boundary fence. His property consisted of woodland and, having sold the fallage of the timber to H, the third party felled a tree in a negligent manner so that it made a gap in the boundary fence through which two cows of the plaintiff strayed into the woodland and fed on the leaves of a yew tree which had been felled by H. and died in consequence thereof. It was held that the damage was not too remote and the defendant was thus liable to the plaintiff for the loss of the cows.
In Roth v. Wilson (1817) 1 B. & Ald. 59 where the plaintiff, the bailee of a horse, turned it into a field, and, from the bad state of the fence, which it was the defendant’s duty to maintain, it fell into the defendant’s field and was killed; it was held that the defendant was liable.
It was held in an anonymous case in Ventris, where a horse of the plaintiff escaped into the defendant’s field through a defect in a fence, which the defendant was bound to maintain, and was killed by falling into a ditch in a field, that the defendant was liable. The same view of the law was acted upon in the case pf Powell v. Salisbury (1828) 2 Y. & J. 391 where the defendant was held liable for the loss of cattle which escaped from an adjoining field through a defective fence which he was bound to repair and were killed on his premises by the falling of a haystack.
Even in relation to the English Animals Act, 1971, which does not apply in the present jurisdiction, the Law Commissioners recommendation, in para. 24, ststed in reference to the liability of a defendant for the act of third parties:— “We would also resolve any doubts which may remain in spite of the majority view in Baker v. Snell [1908] 2 K.B. 825 as to the availability of the defence of the act of a third party, by the clear rule that this defence is not available. In view of the rationale of strict liability for special risks it is our view that the act of a third party is one of the circumstances against which the person creating the risk should take precautions”.
Counsel also referred to Charlesworth on Negligence 5th Ed. 1971, p. 613.
Martin J. Kennedy for the defendants:
The owner of domestic animals is bound to keep them under control and is liable if they escape and commit a trespass. The liability is an absolute one, independent of negligence, unless the escape or trespass was due to the act or default of the other party or of a third person for whom the owner of the cattle is not responsible. The question at issue, in this case, relates to the duty to maintain the fence and gate between the two properties. [See Halsbury: Laws of England Vol. I p. 544].
The owners of adjoining lands are not bound to fence either against or for the benefit of each other, the general rule being that a man is only bound to take care that his cattle or animals do not trespass upon the lands of his neighbour.
The erection and repair of fences may be made the subject of agreement express or implied or may arise from prescription. In default of proof of this obligation there is no liability on the defendants to fence the lands or to close the gate. [Halsbury, Vol. 3 pp. 148-154].
While it is settled law that if a man is under an obligation to fence for the benefit of the adjoining owner, and fails to do so, he will be liable if the animals of the adjoining owner stray on to his land and are there injured. There is no proof, in the present case, that the defendants had an obligation to fence the burial ground or close the gate against the cattle of the plaintiffs. Furthermore, in this case the evidence shows that the gate was left open by a third party and not by the servant or agen of the defendants.
The President, (Judge O’Briain), said that he was satisfied that the County Council, through their servants and agents, had custody of the keys of the gate and that he gave the keys to a visitor to Quin Abbey on the 5th January, 1970. The gate was not closed after the visitor had been to the Abbey and some cattle, the property of the plaintiff, went into the adjoining graveyard and one of them ate some *59 of the foliage of a yew tree. The fences and gate of the burial ground were looked after an maintained by the defendants and the authorities cited by Mr. Lee satisfied him that the defendants were responsible for the loss of the plaintiff’s bullock.
The judge, accordingly, awarded the plaintiff the sum of £110 damages and costs.
Workman v M’Neill
Circuit Cases.
1 March 1897
[1897] 31 I.L.T.R 144
Gibson, J.
There is a recent decision in Clarke v. Midland Great Western Railway Company (1895), Ir. R. 2, p. 294; 29 Ir. L. T. & S. J. 87, 239, that when a man does a wrong, even though not an act of construction, he is continually liable for all consequences until he does an act to remove it. In that case the facts were that the defendants, for the purpose of improving the water supply of their station, made certain alterations in the bed of a watercourse furnishing such water supply, The plaintiff brought an action for trespass in 1892, obtained damages, and had judgment entered for him. He subsequently brought another action for a continuing trespass and injury to his right to the flow of water. The continuing wrongdoer was held liable, and the plaintiff entitled to sue de die in diem, on the ground that if a man makes an obstruction, though he never could remedy it, he was always liable for the continuance of the wrong. In that case I said it was liable to one qualification, that if the wrongdoer himself offered to remove the trespassing article, and at his own expense to recoup the damage to the plaintiff, and the plaintiff rejected the offer, then the plaintiff might be no longer in a position to proceed on the doctrine of continuing trespass. In my opinion, the defendant is liable to a new action every day this gate and fence exist, and the only way he can get rid of the liability is, with the plaintiff’s permission, to abate the structures he has put up. But if the plaintiff refused to allow the defendant to remove the obstruction, and the question came before me, the law is so doubtful that I would state a case. I must affirm the decision of the learned County Court Judge.
Gleeson v Hurley
High Court of Justice.
King’s Bench Division.
8 February 1916
[1916] 50 I.L.T.R 53
Cherry L.C.J., Gibson, Dodd JJ.
Gibson, J., in delivering the judgment of the Court, said that in the present case the Justices had dismissed a complaint by a common informer, a gamekeeper of Lord Kenmare, under the Act for the Preservation of the Game (27 Geo. III. (Ir.), c. 35), on the ground that there was no evidence of the offence. On Sept. 30, at an hour not stated, the respondent shot a pheasant on lands occupied by a yearly tenant on the Kenmare Estate. The game rights belonged to that tenant, but he was not examined before the Justices to negative authority or consent. The pheasant was shot during the close season, and the respondent’s act was illegal. The two points relied on by the appellant were (1) under the Act of 27 Geo. III. (Ir.), c. 35, and the Game Acts as a whole, the onus lay on a defendant of showing that the primâ facie trespass was excused by the consent of the occupier; (2) the evidence in the present case *53 was sufficient to warrant a conviction. On the first point it had been argued that in a game prosecution it was not necessary for the prosecutor to prove that the defendant possessed the necessary qualifications: R. v. Turner, 5 M. & S. 206. Similarly, in cases where a written licence was required to justify the act of the defendant as in sale of drink (R. v. Hanson, 4 B. & Ad. 519), or for theatres (R. v. Neville, 1 B. & Ad. 489), or for supply of seamen (Turner v. Johnston, 51 J. P. 22), or as in the case of Larkin v. Belfast Harbour Commissioners, [1908] 2 I. R. 214, 42 Ir. L. T. R. 52., the onus lay on the defendant. Under the English Game Act, 1 & 2 Wm. IV., c. 32 (in part applied to Ireland), a defendant prosecuted for trespass in pursuit of game has to prove the excuse. The Irish Amending Act, 27 & 28 Vict., c. 67 (as to landlords reserving an exclusive right to game), founded on 1 & 2 Wm. IV., c. 32, s. 30, treats the landlord’s right as based on trespass on a personal occupation. It should be noted that in s. 42 of the English Statute, 1 & 2 Wm. IV., c. 32, the burden of proof was expressly put on the defendant, but that provision was not extended to our Game Act. Much reliance was placed on R. (Sheahan) v. Justices of County Cork, [1907] 2 I. R. 5, 40 Ir. L. T. R. 163, followed in R. (Gorey) v. Justices of County Kilkenny, [1912] 2 I. R. 1, and on County Officers and Courts (Ireland) Act, 40 & 41 Vict., c. 56, s. 78, and it was argued that the occupier’s consent was a matter of qualification or excuse to what was a primâ facie trespass, and was within s. 78. The first question, which might have been disposed of in previous cases, where on the facts it arose but was overlooked, would be left open for further determination, as it was not necessary to decide it in the present case. The Court was of opinion that the second ground of the argument was right, and that there was evidence to support the conviction, even though it were assumed in defendant’s favour that the onus of proof rested on the prosecutor. Any entry on the lands of another was primâ facie trespass, which in a civil case had to be met by a defence of leave and licence or other matter of excuse. In a game prosecution, as indeed in other cases, the whole circumstances might warrant an inference of want of lawful authority. The time and the hour, the person, his conduct, actions, language, demeanour, and the circumstances of the act may indicate primâ facie guilt. Here the act complained of could not have been lawfully authorised by any one, and all that defendant said when challenged was that he had a right to shoot there, and would do so again. An authority from an occupier to shoot must, be strictly followed: Halsbury, Laws of England, Vol. XV., 230, and it was not to be presumed that the occupier authorised illegality. The Court, therefore, held that there was evidence to support the complaint, and that the decree below was erroneous. The case should be remitted to the Justices with a declaration that there was evidence of the offence charged on which they might properly convict. The defendant should pay the costs of the present proceedings.
Cherry, L.C.J., and Dodd, J., concurred.
Rozmyslowicz v The Minister for Justice and Equality & Ors
[2018] IECA 289 (20 August 2018)
Court of Appeal
Composition of Court:
Peart J., Hogan J., Baker J.
Judgmentby:
Hogan J.
Status:
Approved
Result:
Allow and set aside
THE COURT OF APPEAL
Neutral Citation No: [2018] IECA 289
Record No. 2016/267
Peart J.
Hogan J.
Baker J.
JUDGMENT of Mr. Justice Gerard Hogan delivered on the 17th day of August 2018
1. The plaintiff, Ms. Rozmyslowicz, is a Polish national who has lived and worked in Ireland for some time. The present proceedings arise from the actions of members of An Garda Síochána who entered the plaintiff’s dwelling at 7 The Grove, Sallins, Co. Kildare on Sunday, 19th August 2012. It is common case that members of An Garda Síochána entered the plaintiff’s dwelling on that day and that they did so without her consent. The essential issue, both in the High Court and in this Court, was whether the actions of the Gardaí in effecting this search in this manner were lawful. The Garda case is based on the provisions of s. 6(1) of the Criminal Law Act 1997 (“the 1997 Act”), provisions to which it will be necessary to return in more detail at a later point in this judgment.
2. In a lengthy and comprehensive judgment delivered on 13th April 2016 Fullam J. dismissed the plaintiff’s claim. The plaintiff has now appealed to this Court against that decision. The issues which arise on this appeal are, however, difficult and are not straightforward.
The background to the present proceedings
3. The events giving rise to these proceedings may be said to have started on 16th February 2012. On that day members of An Garda Síochána came to the plaintiff’s home with a European Arrest Warrant in respect of her then partner, Mr. Sebastian Snaidy. Mr. Snaidy was arrested and taken by Gardaí to Dublin. It is accepted that Mr. Snaidy was then brought before the High Court and that he was released on bail to Ms. Rozmyclowich’s address. The plaintiff gave evidence in the present proceedings to the effect that she knew that Mr. Snaidy would have to return to the High Court in July 2012.
4. According to the plaintiff, Mr. Snaidy decided on the morning of that Court hearing on Tuesday 24th July 2012 to return to Poland and brought a suitcase of clothes with him as he left. Some time after noon on that day, two Gardaí called to the plaintiff’s home and inquired as to Mr. Snaidy’s whereabouts. She stated that she believed that Mr. Snaidy had travelled to Dublin to attend court, but the Gardaí informed her that he had not done so. The plaintiff then said that Mr. Snaidy must have travelled to Poland. The Gardaí then asked her about the motor vehicle in the driveway, but she stated that Mr. Snaidy had transferred the vehicle to her.
5. It is the events of 19th August 2012 which are, however, central to this appeal. The plaintiff stated that she was in bed in her pyjamas at around noon when she heard a ring on the doorbell. She was alone in the house at the time, save that her pet dog was also present in the house. The house itself appears to be a standard two storey semi-detached dwelling of relatively modest dimensions with a driveway sufficient to accommodate one car and a front garden of commensurate size.
6. Ms. Rozmyslowicz looked out of an upstairs window whereupon she saw two men in t-shirts whom she did not recognise. She went downstairs to open the door, but, in order to prevent the dog escaping she opened the door only slightly so that she could peer out. The two men in t-shirts identified themselves as Gardaí by showing identification badges and two uniformed Garda personnel were also present. The Gardai told her that they were there to search for Mr. Snaidy. The plaintiff responded by saying that he was not present and demanded to see a copy of any warrant they might have.
7. The Gardai did not, however, have a copy of any warrant in their possession and the plaintiff refused to give them consent to search the premises. At this point the plaintiff’s dog went upstairs and jumped up onto a bed which was based beside a window ledge. There was a net curtain on the window and the dog may perhaps have rustled the curtain as it endeavoured to look out.
8. At that point one of the Gardaí, Garda O’Sullivan, said something to the effect that she saw some movement at the window upstairs. The plaintiff replied by saying that this was her dog. At that point one of the Gardaí started pushing the door (which was only slightly ajar) and as the door was pushed forward against the plaintiff’s right foot, she fell and injured her ankle. The Gardaí then entered the dwelling, with one going into the back garden and the two other going upstairs. The other Garda, Garda O’Sullivan, subdued the dog. It was clear as a result of the search that no person other than Ms. Rozmyslowicz was present in the house at the time it was searched.
9. The plaintiff claims damages for trespass and for personal injuries sustained as a result of the forcible entry. She also claims damages for violation of constitutional rights.
The course of evidence in the High Court
10. It is next necessary to consider the course of evidence in the High Court. After the plaintiff had given evidence, the State parties applied for a direction on the ground that there was no case to answer. After considering the matter overnight, Fullam J. refused the application on the ground that there was a case to answer. The defendants then went into evidence.
The evidence of Detective Garda Hanrahan
11. Detective Garda Hanrahan gave evidence that he was responsible for the execution of European arrest warrants in the Naas district. He had previously arrested Mr. Snaidy in respect of the EAW warrant in February 2012 and he was aware that Mr. Snaidy had given this address when granted bail.
12. The next development was that he had been made aware that Mr. Snaidy had failed to appear at the High Court hearing and that a bench warrant had been issued for his arrest by Edwards J. He was then given responsibility for the execution of that warrant. Detective Garda Hanrahan then checked the Garda PULSE intelligence system to ascertain the later intelligence on Mr. Snaidy. Early on the morning of Sunday, 19th August 2012 Detective Garda Hanrahan drove by the house and noticed that Mr. Snaidy’s red BMW motor vehicle was still parked outside the door. He then assembled a Garda team to go to search the premises.
13. When the door was opened by Ms. Rozsmyslowicz, it was opened only to the extent that it allowed her to peer out. Detective Garda Hanrahan explained that there was a warrant for the arrest of Mr. Snaidy, but the plaintiff kept repeating that he was not there. Detective Garda Hanrahan then asked whether, if he was not there, “can I come in and have a quick look?” The plaintiff refused this request, saying that the Gardaí would have to produce a warrant.
14. Detective Garda Hanrahan said that he then heard one of his colleagues, Garda O’Sullivan, say that she had seen a hand moving the net curtains upstairs. He asked the plaintiff who was upstairs, but she denied that there was anyone else in the house, that she was alone there with her dog and repeated her insistence that the Gardaí could not enter the dwelling without a warrant. Detective Garda Hanrahan then said that he had reasonable grounds to believe that Mr. Snaidy was in the house and that he was now entitled to enter. He denied in evidence that he had used force or that he had injured the plaintiff during the course of the entry into the dwelling. A thorough search of the premises revealed nothing of interest to Gardaí.
15. Garda Joanne O’Sullivan was the other witness for the defence. She stated that she had remained at the front of the driveway when Detective Garda Hanrahan and Detective Sergeant McHale went to the front door. She stated that she noticed a hand moving the net curtain in the window of the top left of the house. She relayed this information to Detective Garda Hanrahan who then put this to the plaintiff. Garda O’Sullivan then said she heard the plaintiff explaining that there could not have been a hand at the window and that must have been her dog. Garda O’Sullivan then repeated that she had seen a hand and that at that point the Gardaí entered the dwelling.
The failure to put certain matters in cross-examination
16. One unsatisfactory aspect of the proceedings in the High Court was that it emerged during the course of the defendants’ evidence in chief that certain key aspects of their case were not put in cross-examination to the plaintiff. These omissions included the failure to suggest that Garda O’Sullivan had positively seen a hand – rather than simply just movement – at the upstairs window and Detective Garda Hanrahan’s claim that he did not push the front door and that the plaintiff had not injured herself in the process. Counsel for the State defendants accepted that a deliberate choice had been taken not to put these elements of the State case to the plaintiff in cross-examination. It seems that this decision was taken because it was anticipated that the State parties would be making an application for a direction.
17. The failure to put this case was quite fundamental and it went to the very fairness of the trial. If, as seems to have been the case, the failure to put these matters was a part of some strategy on the part of the State defendants, I will merely say that, as matters have transpired, it is a strategy that has done them few favours.
18. All practitioners will be familiar with instances where, not least in a complex and difficult trial with a multiplicity of witnesses, there will have been a failure to put certain matters, often as a result of inadvertence or oversight. In such circumstances, as part of the give and take of the Bar, a witness will often be recalled without objection to have this particular detail put to him or her.
19. The present case was rather different: there were only two witnesses for the State and a vital part of their case was (i) that a human hand had been seen at an upstairs window and (ii) the plaintiff had suffered no personal injuries as a result of the forced entry. Yet these vital details were not put to the plaintiff when she was giving evidence. In these particular circumstances it was no answer at all for the defendants somewhat lamely to venture the suggestion that Ms. Rozmyslowicz might be recalled to give evidence thereby enabling the State’s to mend its hand and exposing the plaintiff to a second round of cross-examination on these critical issues.
20. In his judgment in the High Court Fullam J. stated (at para. 103):
“Furthermore, the court would observe that while it was unfortunate that important details of the evidence that was to be given by Detective Garda Hanrahan and Garda O’Sullivan were not put to the plaintiff this did not, it seems to me, give rise to any unfairness to the plaintiff in circumstances where she was given the opportunity by the court to return to the witness box and to comment on the matters which had not been put to her. I am fortified in this view by the decision of the Court of Criminal Appeal inDirector of Public Prosecutions v. Brett[2011] IECCA 12 where Murray C.J. held that [it was sufficient] that the trial judge had informed counsel for the defendant that they were at liberty to recall their client to deal with matters not put and the defendant was thereby afforded an appropriate opportunity to fully and fairly address the evidence against him.”
21. For my part, however, I consider that in the particular circumstances of this case the matter goes rather further than this. The decision inBrettconcerned an allegation that a co-defendant had not put a suggestion that the defendant had arrived on the scene of the crime in possession of a knife. The judgment of the Court of Criminal Appeal appears to proceed on the basis that this issue was not a critical one in the context of that particular trial and that the failure to put that suggestion seems in the circumstances to have been regarded a form of harmless error which could have been rectified by a witness recall.
22. One way or the other, I doubt ifBrettcan be regarded as exemplifying any wider principle. The failure here to put these, and, indeed, other important, points to the plaintiff must be regarded on the facts of this particular case, at least, to go to the fairness of the trial, especially as a great deal turns in this case on the detail of these particular facts. It is perhaps sufficient to say that the plaintiff would have been entitled in the particular circumstances of this case to a re-trial on this ground alone, should it have proved necessary to do so.
The judgment of the High Court
23. In his judgment in the High Court Fullam J. commenced his discussion of the legal issues regarding the search and entry of the dwelling by referring to the provisions of Article 40.5 of the Constitution:
“The dwelling of every citizen is inviolable and shall not be forcibly entered save in accordance with law.”
24. Fullam J. then stated:
“It is common case that the Gardaí entered the plaintiff’s dwelling against her wishes: in doing so, they were trespassers and were violating the plaintiff’s constitutional rights, unless they can establish that their entry was in accordance with law.”
25. What, then, was the “law” which authorised the entry by the Gardaí in the present case? As it happens, Fullam J. held that the entry in the present case was a forcible one, but it is nonetheless pertinent to observe in the present context that Article 40.5 does not protect against forcible entry only. As Walsh J. stated inThe People (Attorney General) v. O’Brien[1965] I.R. 142, 169 the reference to forcible entry in Article 40.5:
“…does not mean that the guarantee is as against forcible entry only. In my view, the reference to forcible entry is an intimation that forcible entry may be permitted by law but that, in any event, the dwelling of every citizen is inviolable save where entry is permitted by law and that, if necessary, such law may permit forcible entry.”
26. Forcible entry is, in principle, certainly permitted by s. 6(1) of the 1997 Act. Section 6 provides:
“(1) For the purpose of arresting a person on foot of a warrant of arrest or an order of committal, a member of the Garda Síochána may enter (if need be, by use of reasonable force) and search any premises (including a dwelling) where the person is or where the member, with reasonable cause, suspects that person to be, and such warrant or order may be executed in accordance with section 5.
(2) For the purpose of arresting a person without a warrant for an arrestable offence a member of the Garda Síochána may enter (if need be, by use of reasonable force) and search any premises (including a dwelling) where that person is or where the member, with reasonable cause, suspects that person to be, and where the premises is a dwelling the member shall not, unless acting with the consent of an occupier of the dwelling or other person who appears to the member to be in charge of the dwelling, enter that dwelling unless:-
(a) he or she or another such member has observed the person within or entering the dwelling, or
(b) he or she, with reasonable cause, suspects that before a warrant of arrest could be obtained the person will either abscond for the purpose of avoiding justice or will obstruct the course of justice, or
(c) he or she, with reasonable cause, suspects that before a warrant of arrest could be obtained the person would commit an arrestable offence, or
(d) the person ordinarily resides at that dwelling.
(3) Without prejudice to any express amendment or repeal made by this Act, this section shall not affect the operation of any enactment or rule of law relating to powers of search or powers of arrest.”
27. Section 5 of the 1997 Act provides:
“A warrant for the arrest of a person or an order of committal may be executed by a member of the Garda Síochána notwithstanding that it is not in the member’s possession at the time, but the warrant or order shall be shown to him or her as soon as practicable.”
28. In the light of this provision Fullam J. held it was not necessary “for the Gardaí to have the arrest warrant in their possession in order lawfully to execute it.” The judge then went on to determine the various elements of the s. 6(1) power “which must be found to exist before its provisions can be lawfully invoked”. Accordingly, it followed that:
(i) The purpose of its use must be to arrest a person on foot of an arrest warrant or an order of committal;
(ii) That for such purpose members of An Garda Síochána may enter any premises, including a dwelling, where that person is or, with reasonable cause, is suspected to be;
(iii) Such entry may, if needs be, be effected by the use of reasonable force.
(iv) The Gardaí must properly invoke their powers under s. 6(1) of the 1997 Act.
(v) Was the use of force reasonable and was it proportionate?
29. Fullam J. then addressed in turn each of these specific requirements. He held first that the object of the Gardaí at all times was to arrest Mr. Snaidy on foot of the bench warrant which had been issued by the High Court on 24th July 2012 and it followed that this element of s. 6(1) had been satisfied in the present case. This finding is obviously correct on the evidence and it is not really in dispute so far as the present appeal is concerned.
30. The judge then went on to deal with the more troublesome issue of whether the Gardai had reasonable cause to suspect that Mr. Snaidy was in the dwelling. In this regard Fullam J. followed the analysis contained in the judgment of O’Malley J. inKessopersadh v. Keating[2013] IEHC 317 where she set out the relevant principles regarding the reasonable suspicion requirement contained in the parallel provisions found in s. 6(2) of the 1997 Act as follows:
“The question whether a particular suspicion existed in the mind of the arresting officer is a question of fact, to be determined in the light of his sworn evidence and the surrounding circumstances- seeThe People (DPP) v Quilligan[1986] I.R. 495. The existence of reasonable cause is a mixed question of fact and law. In his workCriminal ProcedureWalsh defines suspicion by reference to the judgment of Lord Devlin inHussein v Chong Fook Kam[1970] AC 942, where it is said:
“Suspicion in its ordinary meaning is a state of conjecture or surmise where proof is lacking: “I suspect but I cannot prove.” Suspicion arises at or near the starting point of an investigation of which the obtaining of prima facie proof is the end.”
However, it is clear that the permitted scope of conjecture or surmise is limited to what is reasonable in the circumstances. InWalshe v Fennessy[2005] 3 I.R. 516, the Supreme Court considered the suspicion grounding arrests under s. 30 of the Offences Against the State Act, 1939. Kearns J. noted that the suspicion grounding the arrest, to be “not unreasonable” must “find some objective justification from the surrounding circumstances and the information available to the arresting officer.”
In the case ofDPP v O’Driscoll(Supreme Court, 1st July, 2010) the Court endorsed the following principles:-
(a) The reasonable cause to suspect must be fair and reasonable and honestly held on the basis of the information available to a member of An Garda Síochána at the relevant time.
(b) The reasonable cause to suspect must be referable to facts or information which would satisfy an objective observer: it is an objective test.
(c) The objective test requires that the basis for the reasonable cause to suspect be examined by reference to the time and the circumstances in which the power was exercised.
(d) The facts or information grounding the reasonable cause to suspect may be either what the member of the Garda Síochána has observed or information that he has received. The information acted on by the member need not be based on his own observations since he is entitled to have a reasonable cause to suspect based on what he is told.
(e) The reasonable cause to suspect may be based on information from any source including an anonymous source. Since it is only the information that is in the mind of the member of An Garda Síochána that is relevant it is unnecessary to investigate what was known to an informant or whether the information is true. If the information grounding the reasonable cause to suspect turns out to be ill-founded the lawfulness of the entry will not be impugned. What is relevant is the information available to the member of the Garda Síochána at the relevant time.
(f) Material grounding a reasonable cause to suspect need not satisfy the same threshold as is required to lay a charge nor is it necessary that it constituted admissible evidence.”
31. It followed, therefore, that the suspicion must not be an unreasonable one and must find “some objective justification from the surrounding circumstances and the information available to the arresting officer.” In the light of this test Fullam J. found that Detective Garda Hanrahan had indeed such a reasonable suspicion. Since the analysis of this question is at the heart of the appeal, I propose to return to this issue at a later point in the judgment.
32. So far as the third limb of the test was concerned, Fullam J. found that the Gardai had indeed used force to enter the dwelling. He accepted the plaintiff’s evidence that Detective Garda Hanrahan pushed the door open and that “she was thereby caused to fall and [to] sustain an injury to her right ankle.” Forcing the door open in this fashion clearly amounted to a form of forcible entry: see,e.g.,Swales v. Cox[1981] 1 Q.B. 849, 854perDonaldson L.J. There was ample evidence to support Fullam J.’s findings of fact in this regard and, in truth, this aspect of the judgment is also not really in dispute.
33. So far as the obligation to inform the plaintiff that this statutory power of entry was being invoked is concerned, Fullam J. followed well established case-law regarding powers of arrest, search and entry to the effect that the citizen is entitled to know in general terms “of the nature and description of the statutory powers which is being invoked”: seeDirector of Public Prosecutions v. Rooney[1992] 2 I.R. 7,10perO’Hanlon J. This does not, of course, mean that precise technical language has to be used for this purpose, provided that the citizen knows in substance the reason for the exercise of the power in question: thus, for example, it is sufficient for a Garda to tell a motorist that he is being arrested for drunk driving, even if the precise statutory offence has not been identified: see,e.g., the comments of Hardiman J. inDirector of Public Prosecutions v. Ennis[2011] IESC 46.
34. Fullam J. found that Detective Garda Hanrahan had adequately explained the basis of the proposed search of the dwelling. He concluded on the evidence that the Gardaí had stated that there was a warrant for the arrest of Mr. Snaidy and that they were entitled under law to search the dwelling in these circumstances.
35. Turning to the final limb of the test, Fullam J. drew attention to the importance of the words “if need be” in s. 6(1) of the 1997 Act so far as the use of reasonable force was concerned. He concluded, drawing on the decision of the Court of Criminal Appeal inThe People (Director of Public Prosecutions) v. Byrne[2011] IECCA 105, that the circumstances in which forcible entry might be permitted depended very much on the facts of any given case. In that case McKechnie J. held that the phrase “if need be” must be read as meaning “whether in all the circumstances in which the Gardaí are situated, informed by the information then available, there is in their view, arrived at by objective assessment, a necessity to enter by force.”
36. McKechnie J. further concluded that the sub-section has “no specific requirement to seek consensual entry” and that the context was an important determinative in this context. He distinguished the earlier decision of that Court inThe People (Director of Public Prosecutions) v. Laide[2005] 1 I.R. 209 which, on view, had suggested that a prior request of the occupant to permit entry would generally be necessary before necessary:
“Take, for instance, a situation where armed criminals are hiding in a dwelling house owned by one of them. CouldLaidepossibly be relied upon to suggest that the door should be first knocked at or the doorbell rung. We think not. Surprise may be the essence of the operation. We therefore cannot accept any suggestion that operational needs as a matter of principle could not also give rise to a necessity for a forced entry if, on assessment, that can be objectively justified.”
37. Fullam J. then (at para. 143) applied these principles to hold the use of force had been justified in the circumstances:
“After the movement had been observed at the upstairs window, which gave rise to a reasonable and objectively justifiable suspicion in the minds of Detective Garda Hanrahan that Mr. Snaidy was in the dwelling, the Gardaí were under no obligation to prolong their engagement with the plaintiff in an attempt to persuade her that she was mistaken in her understanding of the law in relation the powers conferred by bench warrants, and the manner in which they are to be executed. In the particular circumstances [of this case], I am satisfied that the Gardaí were merely obliged to request admittance to the dwelling and to explain to the plaintiff in ordinary language the general power of entry on foot of the bench warrant. It was then up to the plaintiff whether she accepted their explanation: she chose not to do so.”
38. On appeal to this Court many of the findings of fact and legal analysis contained in this judgment were not really in dispute. It is, for example, accepted that the entry was a forcible one and counsel for the plaintiff did not really press the argument that the Gardaí had not sufficiently informed her of the reason for the search. Nor can it be doubted but that the plaintiff suffered injury to her ankle when the door was pushed open by the Gardaí. In truth, this entire appeal really turns on the question of whether the Gardaí had “reasonable cause” within the meaning of s. 6(1) of the 1997 Act to effect this forcible entry. I propose now to turn to that issue.
Whether the Gardaí had “reasonable cause” to search the plaintiff’s dwelling
39. As Fullam J. correctly noted, the powers of search contained in s. 6 of the 1997 Act must, of course, be seen against the constitutional guarantees in Article 40.5. While it is clear from the very terms of Article 40.5 itself that the use of the word “inviolable” to describe the dwelling cannot quite literally mean what it says – because, if it did, no forcible entry at all would be permitted – nevertheless, as I put the matter in my judgment in the High Court inSchrems v. Data Protection Commissioner[2014] 3 I.R. 75 “the reference to inviolability in this context nonetheless conveys that the home enjoys the highest level of protection which might reasonably be afforded in a democratic society. “
40. As Hardiman J. observed inThe People v. O’Brien[2012] IECCA 68, Article 40.5:-
“…presupposes that in a free society the dwelling is set apart as a place of repose from the cares of the world. In so doing, Article 40.5 complements and re-inforces other constitutional guarantees and values, such as assuring the dignity of the individual (as per the Preamble to the Constitution), the protection of the person (Article 40.3.2), the protection of family life (Article 41) and the education and protection of children (Article 42). Article 40.5 thereby assures the citizen that his or her privacy, person and security will be protected against all comers, save in the exceptional circumstances presupposed by the saver to this guarantee.”
41. The forcible entry of a private dwelling is accordingly a serious matter for which there must always be the appropriate legal justification. InDamache v. Director of Public Prosecutions[2012] IESC 11, [2012] 2 I.R. 266 the Supreme Court held that s. 29 of the Offences against the State Act 1939 was unconstitutional precisely because that section permitted a senior Garda officer to grant a warrant for the search of private premises who was not independent of the process. As Denham C.J. said ([2012] 2 I.R. 266, 285):
“….These circumstances include the fact that the warrant was issued by a member of a Garda Síochána investigating team which was investigating the matters. A member of An Garda Síochána who is part of an investigating team is not independent on matters related to the investigation. In the process of obtaining a search warrant, the person authorising the search is required to be able to assess the conflicting interests of the State and the individual person, such as the appellant. In this case the person authorising the warrant was not independent. In the circumstances of this case a person issuing the search warrant should be independent of the Garda Síochána, to provide effective independence.
The circumstances of the appellant’s case also includes the fact that the place for which the search warrant was issued, and which was searched, was the appellant’s dwelling house. The Constitution in Article 40.5 expressly provides that the dwelling is inviolable and shall not be forcibly entered, save in accordance with law, which means without stooping to methods which ignore the fundamental norms of the legal order postulated by the Constitution. Entry into a home is at the core of potential State interference with the inviolability of the dwelling.
These two circumstances are at the kernel of the Court’s decision. No issue of urgency arose in this case, and the Court has not considered or addressed situations of urgency. The Court points out that it is best practice to keep a record of the basis upon which a search warrant is granted.
This Court would grant a declaration that s. 29(1) of the Offences against the State Act, 1939 (as inserted by s. 5 of the Criminal Law Act, 1976) and referred to as s. 29(1) of the Act of 1939, is repugnant to the Constitution as it permitted a search of the appellant’s home contrary to the Constitution, on foot of a warrant which was not issued by an independent person. “
42. In one sense s. 6 of the 1997 Act goes further than s. 29 of the 1939 Act which was invalidated inDamachein that there is not even provision for the issue of a formal search warrant prior to the entry of the dwelling. At the same time s. 6(1) does not empower a purely warrantless search for no reason, since one of two possible pre-conditions are specified by the sub-section: the subject of the warrant of arrest must either be present in the house or the member in question must have “reasonable cause” to suspect that that person is present in the house. Without these pre-conditions, it is hard to see how, in the light ofDamache, the section would survive constitutional challenge, since in those circumstances the Oireachtas would have permitted warrantless searches of private dwellings unattended by any appropriate safeguards and without having specified an objective necessity for such a far-reaching intrusion by agents of the State into the privacy of the private dwelling.
43. These pre-conditions to the lawful exercise of the power of search therefore assume a particular importance, because it is compliance with these conditions which provides the necessary objective justification for the search. All of this in turn means that Gardaí effecting such a search must, generally speaking, comply in full with the requirements of the section and, specifically, the reasonable cause requirement. I use the term “generally speaking” advisedly because I fully recognise that there may well be circumstances of manifest urgency or danger – such as those instanced by McKechnie J. inByrne– where a more accommodating approach to the actions of the Gardaí may be required: see,e.g., the judgment of O’Flaherty J. inDirector of Public Prosecutions v. Delaney[1997] 3 I.R. 453, a case where the Gardaí forcibly entered a dwelling in order to protect four young children from a threatening crowd outside. This was not a case, however, where there was any such urgency or danger.
44. The critical question remains, therefore, namely, whether the Gardaí complied with these statutory requirements. I think it first necessary for this purpose to consider the reasons given by the Gardaí themselves before then considering whether, in the words of Kearns J. inWalshe v. Fennessy[2005] IESC 51, [2005] 3 I.R. 516, 542 these reasons “find some objective justification from the surrounding circumstances and the information available to the arresting officer.”
45. It is clear that the decision to forcibly enter the dwelling was taken by Detective Garda Hanrahan only following an exchange with Garda O’Sullivan. What, perhaps, is of central importance in this context, is that Detective Garda Hanrahan expressly accepted that he had no reasonable cause to suspect the presence of Mr. Snaidy in the dwellingpriorto that point. It is true, of course, that the Gardaí knew that Mr. Snaidy had given 7 The Grove, Sallins, as his address for bail purposes. They also knew that Mr. Snaidy’s car was present in the driveway and for this purpose it probably does not matter whether (as the plaintiff stated in evidence) the formal ownership of that car had been transferred to her. But they also knew that the plaintiff had emphatically stated that Mr. Snaidy was not present in the dwelling and that he had gone back to Poland.
46. While these were facts which obviously formed the background to the ultimate decision to enter the premises, I stress again that Detective Garda Hanrahan expressly accepted that these factsin themselvesdid not afford him a reasonable cause to suspect Mr. Snaidy’s presence. What was critical to the ultimate decision to enter the premises were the utterances of Garda O’Sullivan, since it was this additional piece of evidence which crystallised the decision to enter.
What words were spoken by Garda O’Sullivan?
47. In her evidence Garda O’Sullivan was emphatic that she had seen a hand at an upstairs window and that this is what she had stated to her colleagues. She never wavered from that evidence in cross-examination. Indeed, she re-asserted her continued belief that another person must have been in the dwelling at the time of the search, even though no such person was found following a thorough search of the premises.
48. In assessing the nature of this evidence, I do not overlook the fact that on this point Fullam J. preferred the account of the plaintiff – who had stated that she had heard Garda O’Sullivan say that she had seen movement at the upstairs net curtain – rather than that of Garda O’Sullivan herself. I also agree that any assessment of these facts and the precise sequences of events has been complicated by the failure to put certain matters to the plaintiff in her cross-examination.
49. Since, however, it is first necessary to ascertain the grounds on which the Gardaí had relied in order to justify the forcible entry, it is important to recall that Detective Garda Hanrahan himself stated in evidence that he had heard Garda O’Sullivan say that she had seen a hand at an upstairs window. Accordingly, it was that utterance –i.e., that Garda O’Sullivan stated that she had seen a hand at the upstairs window – which was the critical one in his mind, since it was this additional statement which then crystallised his belief that Mr. Snaidy was also present in the dwelling, whereas he accepted that he did not have the requisite reasonable belief immediately prior to that point.
50. The difficulty here, so far as the defendants are concerned, is that Fullam J. preferred the evidence of the plaintiff on this point to that of the two Gardaí. He found – and he was entitled to find – that Garda O’Sullivan stated that she had simply seenmovement– as distinct from a hand – in the net curtains upstairs. If that is so, then the key element which actually formed the basis for Detective Garda Hanrahan’s belief as to the existence of a reasonable cause to justify a forcible entry on that afternoon – namely, Garda O’Sullivan stating that she saw ahandat the window – simply disappears.
51. I accept, of course, that in the unusual circumstances of this case Detective Garda O’Hanrahan had abona fidesubjective belief that he had reasonable cause to enter the dwelling at that point because hethoughthe had heard Garda O’Sullivan say that she saw a hand at the upstairs window. Yet if Garda O’Sullivan was found never to have said these words, then, viewed objectively, there was no proper basis for Detective Garda O’Hanrahan to have formed a reasonable belief based on such a statement.
52. It is true that Fullam J. considered that not much turned on this factual conflict between the two accounts, stating (at para. 120):
“….having regard to the totality of the evidence which was available to Detective Garda Hanrahan at the relevant time, including in particular Garda O’Sullivan’s information regarding movement at the window, which raised real doubts about the plaintiff’s claim to have been alone in the house, I am satisfied that Detective Garda Hanrahan’s state of mind constituted an objectively justifiable suspicion that Mr. Snaidy was in the dwelling.”
53. For my part, however, I think that reasoning in this vital paragraph must suffer two criticisms. First, it tends to overlook the fact that Detective Garda Hanrahan expressly accepted that the other information (the car in the driveway etc.) did not initselfjustify reasonable cause for a forcible entry. Second, the vital information was that a human hand had been seen at the window: it was this fact – and this fact alone – which tipped the balance in favour of a forcible entry on the part of Detective Garda Hanrahan. It may be, of course, that something less than that – such as the movement at the net curtain – would have sufficed for his purposes. But the fact remains that Detective Garda Hanrahan never gave that evidence: his case rested on Garda O’Sullivan having exclaimed that she saw a hand at the window. To repeat, therefore, once Fullam J. found against Garda O’Sullivan on that point, the key element of the reasonable cause was then also missing. Absent reasonable cause, therefore, the search of the dwelling was unlawful since the necessary elements of the exercise of the s. 6(1) power simply were not present.
Conclusions
54. In the particular circumstances of this case, viewed objectively, the Gardaí must be held not have to discharged the evidential burden of demonstrating that they had a reasonable cause to believe that Mr. Snaidy was present in that dwelling for the purposes of s. 6(1) of the 1997 Act such as would justify the forcible entry of the plaintiff’s dwelling.
55. That belief ultimately rested on a claim that Garda O’Sullivan had stated that she had seen a hand at the upstairs window. It matters not that the State might possibly have been in a position retrospectively to justify the search by pointing to other factors to support the existence of a reasonable cause such as the address given for bail purposes or that the car was parked in the driveway. What matters are the reasons given at the time for the reasonable cause and, in this respect, the alleged utterance of Garda O’Sullivan was critical. Once the trial judge found, however, that Garda O’Sullivan did not utter these words regarding the presence of a hand upstairs, the evidential basis for the reasonable cause requirement simply collapsed. This in turn inevitably leads to the conclusion that the forcible entry was not authorised by law and that the Gardaí entered the dwelling as trespassers and in violation of her constitutional rights to the inviolability of the dwelling as protected by Article 40.5.
56. In these circumstances it is unnecessary to consider the other grounds of appeal. I would accordingly allow the appeal and remit the case to the High Court for an assessment of damages.
Condron v Galway Holding Comany and Danmar Construction Limited
[2021] IECA 216
Appeal Number: 2018/305
Whelan J.
Collins J.
Pilkington J.
JUDGMENT of Ms. Justice Máire Whelan delivered on the 30th day of July 2021
Introduction
1. This is an appeal against the decisions of McDermott J. delivered on 17 April 2018 (“the principal judgment”) and 19 June 2018 (“the costs judgment”) and order made on 26 June 2018 wherein for the reasons set out in the principal judgment the appellants were ordered to restore the grass verge on the southern side of Seamount Road for the length of the road-facing boundary of the respondent’s property (“the disputed grass verge”), to reverse any changes which they had effected to same and to pay the respondent €10,000 in damages for trespass. For the reasons set out in the costs judgment, the respondent was awarded costs at the Circuit Court scale with a certificate for Senior Counsel.
2. The background facts are set out in significant detail in the judgments of the High Court and, apart from the key issues of relevance in this appeal, are not rehearsed in this judgment.
19 April 2016
3. The precipitating event which led to the institution of the within proceedings occurred on the morning of 19 April 2016 when workmen retained by the appellants acting on foot of a road opening licence granted by Fingal County Council moved onto the disputed grass verge in front of the respondent’s home and without notice to the respondent removed the verge – along with some cobble-lock surface and concrete kerbing previously installed by the respondent – and proceeded to incorporate same into a footpath which was laid out as part of the accessway to service the appellants’ Seamount housing development. The respondent immediately sought interim interlocutory injunctions.
4. The trial judge heard the case over eleven days in February and October 2017.
5. The claim of the respondent was succinctly characterised by the trial judge as follows: –
“…The plaintiff claims that since 1952 the grass verge abutting the road surface has always been treated by himself and his family members as their property and no other party has lawfully entered upon it for the purpose of maintenance or otherwise. He denies that the grass verge has been taken in charge by the local authority, Fingal County Council.” (para. 2 of principal judgment)
6. The respondent denied that the disputed grass verge had ever been taken in the charge of the local authority. The trial judge observed at paras. 31 and 32 of the principal judgment: –
“The plaintiff claims that while the map attached to the deed of conveyance of 1952 from which he derives his title does not include any portion of the road, the boundary of the lands are indicated by a hedge. The plaintiff claims that he enjoys a presumption that his ownership of land extends to the middle of the road running alongside his property; a presumption which the defendants have not rebutted.
The plaintiff also accepts that a portion of the area beyond the hedge was taken in charge by the local authority and acknowledges that there is a presumption that a roadway, if taken in charge, is normally to be regarded as taken in charge from hedge to hedge. It is accepted that this presumption applies to the roadway on Seamount Road. However, counsel for the plaintiff submits that the facts necessary to give rise to this presumption must be proved by the person who is alleging that the lands have been taken in charge. The plaintiff concedes that the blacktop surface of the road was taken in charge of the county council but maintains that the grass verge was not and that there is no or no sufficient evidence to establish that it was.”
7. Fingal County Council was not a party to the proceedings. No application was brought that they be joined as notice parties or as co-defendants.
Seamount Road
8. Seamount Road, Malahide, Co. Dublin appears on maps dating from 1845. It is a cul de sac situate off the R124. The Condron and Treacy families reside at the furthermost end of the cul de sac from the R124. The respondent’s property is situate on the southern side of the road. The title is unregistered. It was acquired by the respondent’s father as part of a land exchange transaction with Baron Talbot de Malahide and others on foot of a deed of conveyance dated 21 April 1952. The respondent inherited the holding, which operated as a farm, in or about 1979 and constructed a dwelling house wherein he resides. He has lived on the road since 1952 and is now retired.
9. Seamount Road is considerably wider where it commences at the turnoff from the R124 road and narrows progressively along its length, particularly as it approaches the terminus or dead end of the cul de sac where the respondent’s and appellants’ properties are situate.
10. Seamount Road dead-ends at the entrance to Seamount House which is situate on extensive grounds. The third and fourth appellants (the Treacys) purchased the property in 1978. It has a common boundary with the respondent’s property. The third named appellant, Mr. Treacy, now deceased, was a property developer and builder.
11. Mr. Treacy made a number of unsuccessful planning applications in respect of the Seamount lands including in 1997 for a residential development. Again in 2003, permission was refused for a residential development on the north-western part of the Seamount site. The reasons for refusal related, inter alia, to traffic congestion on Seamount Road (per Inspector’s Report, An Bord Pleanála, 16 March 2010).
12. The earlier planning applications of 1997 (F97A/0512) and 2003 (F03A/0076) were, as the trial judge observed:-
“…refused for reasons including the unsuitability of Seamount Road to service such a development and the fact that the road surface available was limited to 3.5m with no footpaths. There has not been any challenge by way of judicial review to any of the planning decisions made or conditions imposed including that of 2009.” (para. 8 of principal judgment)
13. In 2009 a third application (Planning Register Reference No. F09A/0015) for planning permission on the Seamount lands was lodged by Mr. Treacy. On this occasion permission was granted on or about 7 October 2009 and, following appeal, a decision to grant permission was made by An Bord Pleanála on 14 May 2010 for the construction of 159 dwellings on the Seamount lands – more than double the number of dwelling units sought in the earlier unsuccessful applications.
14. Subsequently, the development site on the Seamount lands came to vest in the first appellant company. The second appellant is a building development company and previously developed nearby lands, constructing a housing estate known as Knockdara Estate, which is accessed from Seamount Road, on same. The Treacys were directors of the companies and retained the dwelling Seamount House and its curtilage.
15. The width of the black top surfaced, metalled road or via trita at the relevant locus on Seamount Road is 3.5 metres where it runs parallel to and alongside the respondent’s property. The respondent’s contention is that the disputed grass verge in front of his dwelling house, lying outside his hedgerow and abutting same, comprises part of his property. He advanced two alternative propositions in support of that contention. Firstly, that it was acquired on foot of the deed of conveyance of 1952 or, in the alternative, that his entitlement arises by way of a legal presumption that the ownership of his lands extends to the middle of the road abutting the property. In the course of the appeal he placed greater reliance on the latter proposition.
16. The trial judge acknowledged that an outline of the history of the planning issues relating to the Seamount site and the roadway “has been a central feature of the evidence in the case and is of some assistance in understanding the history of the roadway and the plaintiff’s claim” (para. 8).
Events of 2003
17. Certain events in 2003 took on a particular importance from a planning perspective in the course of the hearing and were the subject of detailed consideration by the trial judge.
18. On 28 February 2003, as the High Court noted, the respondent wrote to the Council objecting to the 2003 planning application lodged by Mr. Treacy. At that time the respondent’s grounds of objection included asserting the lack of capacity of Seamount Road to accommodate the increased traffic arising from the proposed development: –
“The road itself is very narrow and would not be able to accommodate large vehicles…
The public road is not an adequate width. As the road goes up it gets narrower and there are also no footpaths on either side of the road in the affected area where the building plans to commence.”
The respondent did not explicitly assert his ownership of the disputed grass verge in February 2003. The court noted that: –
“62. During cross-examination it was established that Mr. Condron Jr had drafted the letter dated 28th February 2003 objecting to the planning application reference no. FO3A.0076 for the plaintiff. It is clear that the plaintiff’s education was very limited and it is not surprising that his son assisted him in formulating his objection. It was put to Mr. Condron that in this letter he raised no claim to owning out to the middle of the road, including the grass verge. The witness responded that the 2003 planning permission application did not envisage any changes to the road which would intrude on the grass verge, the implication being that it was unnecessary to raise ownership of the verge on that occasion.”
7 August 2003
19. The appellants placed particular reliance on a letter of 7 August 2003 sent to Mr. Treacy by an official in Fingal County Council and contended that same constituted prima facie evidence pursuant to statute that the roadway, including the disputed grass verge, at Seamount Road had been taken in charge by Fingal County Council from centre of hedge to centre of hedge for its entire length and that in consequence the requisite width of road for the planning design submitted in the context of the planning application by Mr. Treacy in 2009 lay within the charge of Fingal County Council as the roads authority.
20. The letter was addressed to Mr. Treacy, who is now deceased and is set out in full in para. 5 of the High Court judgment. The letter was headed “Cert No. TIC/88/2003” and stated: –
“RE: PREMISES: SEAMOUNT ROAD MALAHIDE
Dear Sirs
I wish to refer to your letter dated 31st July 2003 and to state that the roads, footpaths, sewers, watermains and public lighting abutting Seamount Road are in charge of the County Council from The Hill, Malahide up to the entrance of Seamount House. Between Knockdara and the entrance to Seamount House the width of the Road in Charge is 7.5 m.”
The trial judge observed: –
“The relevance of the certificate number was never established in evidence. One might infer that it was a certificate number 88 issued in 2003 in respect of a taking in charge (TIC). No evidence was led from the council that the numbering had any significance or that there was a register of such certificates. The defendants submit that as a matter of evidence the certificate is prima facie evidence that Seamount Road is a public road by virtue of s. 11(5) of the Road Traffic Act 1993.” (para. 5 of principal judgment)
21. Salient events leading up to the generation and issuance of the said document by the Council in August 2003 were identified by the trial judge in the principal judgment at paras. 70 to 73:-
“Evidence for the defendants
70. Ms. Maureen Treacy stated in evidence that in July 2003 she telephoned the Roads Department in Fingal County Council for clarification on the width of road that had been taken in charge at the relevant part of Seamount Road. The first time she telephoned, she was told that the area taken in charge was 9m in width. She recalls that when she told her husband this he said that it would not be 9m. He asked her to call again and ask for the width of the road taken in charge between Knockdara estate to the entrance of Seamount House. During the second telephone conversation with a council employee, she was told that if she wanted the exact measurements she would have to write a letter enclosing a fee of €90.00. She stated that she wrote the letter of 31st July, 2003 requesting that 9m of road be taken in charge, and recalls that two people from the council measured the road some days later. She and her husband then received the document of 7th August, 2003. At that time she was aware that the plaintiff was objecting to the 2003 application for planning permission but that he had not said anything about owning any portion of Seamount Road. She states that she did not have any discussions with the plaintiff at this stage regarding the road and does not believe that her husband had either.
71. Under cross-examination Mrs. Treacy stated that she had never spoken to anyone in the council prior to the initial phone conversation in which she was told the area taken in charge was 9m in width. She agreed that the width of Seamount Road was not consistently 7.5m and narrows in parts but stated that overall it would be 7.5m. She initially spoke to a male official. She was asked about her letter of 31st July in which she requested that 9m of roadway be taken in charge. She said that she made the request in the letter adopting the wording which the official told her to use: he had said they had 9m in charge so she wrote down 9m. She states that she was told that if she wanted to know the exact measurements of the road that was taken in charge she would have to send the letter with a €90 fee and that somebody would come out and measure the road and provide the exact measurements. The witness denied that the letter of the 31st July, 2003 was part of a pre-ordained agreed campaign with a council official and maintained that she only made two phone calls to the council. She simply did what the council officials with whom she spoke instructed her to do.”
22. The trial judge had noted earlier at para. 6 that the Council’s letter had issued: –
“…as a very prompt response to a short letter typed by the fourth defendant at the instigation of her late husband on 31st July, 2003 to Ms. Kathleen Power of the Roads Department, Fingal County Council making what she described as an application for the taking in charge of a 9m wide section of roadway outlined in an attached map and accompanied by a fee of €90 which the official had requested accompany the application.
7. The purported ‘Cert’ was signed by Ms. Bridget Gilbert, Senior Executive Officer, Fingal County Council. The nature and effect of this document is in issue between the parties. In particular the width of 7.5m is questioned by the plaintiff who claims that the distance from hedge to hedge at the relevant section of Seamount Road was 4.6m on average. It is claimed that a width of 7.5m would require the council to not only take in charge the grass verge, but also encroach significantly past the hedge into the plaintiff’s property, the Nolan’s property on the opposite northern side of Seamount Road or both in order to provide a carriageway and footpath of the dimensions required…”
23. In considering and evaluating the purported certificate of 7 August 2003, the trial judge made the following observations at para. 7 of the principal judgment: –
“…Witnesses from the council were unable to clarify to the court’s satisfaction the status of the document or the basis for the assertion that a 7.5m width of roadway was taken in charge. Neither Ms. Power nor Ms. Gilbert gave evidence in these proceedings. Mr. William McClean, a senior executive engineer in the Council from 2001 to 2010, stated that on receipt of the letter he sent an unidentified technician out to the location to check the length and width of Seamount Road which gave rise to the measurement of a width of 7.5m. No documentation was produced to establish these measurements which if made must have given rise to some form of internal paperwork having regard to the undoubted importance of the matter. He had no recollection of the personnel who dealt with the query or with whom he engaged concerning the query. He did not draft, write or sign the letter in response…”
The court noted that Mr. James Cleary: –
“…a recently retired Senior Engineer with the Council confirmed in evidence that Ms. Power was a member of the administrative staff in the Roads Department in August 2003 but he was unable to give any explanation for the assertion in the document that a 7.5m wide area had been taken in charge and in effect rejected it as an accurate measurement: there is nothing to support it…”
The trial judge concluded: –
“…The court is not satisfied because of the absence of relevant documentation, the fact that those directly involved in the exchange of correspondence are not available as witnesses and what I regard as the unsatisfactory nature of Mr. McClean’s recollection of this event and the overall lack of cogency of the evidence advanced to accept the council’s account of how this correspondence arose and was addressed.”
Roads schedules
24. In the judgment at para. 23 the court noted that on 4 September 2015 Mr. Sean McGrath, a senior executive engineer with Fingal County Council, wrote to the respondent’s solicitor stating:-
“…I have researched the question of the taking in charge of Seamount Road. I have been provided with an extract from a schedule of roads deemed to have been taken in charge. The schedule includes Seamount Road, listing its length as 680 linear yards and its average width as 15 feet. I attach a copy of this schedule for your information.”
The court noted that the attachment was entitled “Roads in Charge – Excerpt from 1930 + 1952 Road Schedules” but that it did not include any maps and that it listed Seamount Road as having been taken in charge:-
“…The Court has heard that although the ledger in which the originals of these excerpts is kept by the council in ‘safekeeping’, the council was unable to locate the original ledger.”
Key witnesses
Mr. James Cleary
25. The evidence of certain witnesses at the hearing assumed a critical importance. The trial judge noted that by an email of 22 October 2015 sent on behalf of the Council to the respondent’s solicitor, Mr. James Cleary, then a senior engineer with Fingal County Council: –
“…stated his opinion that there was no basis for the issuing of a ‘Cert’ indicating that 7.5m of roadway had been taken in charge but that he was satisfied that the entire roadway boundary to boundary had been taken in charge:
‘My opinion on some of the issues is as follows;
The Council has taken the road outside your clients’ property in charge. The road is taken by the Council to mean from boundary to boundary excluding the boundary itself. Accordingly, should the Council need to maintain the road in any manner, it will act to do so between the road boundaries, with due regard to the nature of those boundaries. It is probably unnecessary to state that these boundaries delineate the extent of the private ownership of the adjoining landowners.
There are no extant maps showing limits to the taking in charge at Seamount. I see no basis for the statement, set out in the Council’s letter of 7th August 2003, that the width of the road in charge is 7.5m.’” (para. 24 of principal judgment)
The email continued:-
“As the Council has taken the road in charge, it follows that any work proposed on or under that road must have the approval of the Council. This normally takes the form of the granting of a licence to open the road, subject to relevant conditions with regard to the satisfactory restoration of the road and the lodgement of a suitable sum against which the costs of restoration works, carried out by the Council, should the need arise, would be offset.
I am aware that approval for this development was granted with the usual caveat of section 34(13).”
26. Mr. Cleary in evidence had told the court that “he formed this opinion on the basis of a site visit he made from which it was clear that the stated width did not exist, rather than on the basis of documentary evidence in the council’s possession” (para. 25). The court noted that no map of the road taken in charge existed. Further it was unclear as to when particularly Seamount Road had been taken in charge by the roads authority. It was clear from the evidence before the court that Mr. Cleary had never worked in the taking in charge section of the Council. He was a retired senior engineer in the Capital Investments Department of the Council. The court noted at para. 64 of the principal judgment that: –
“…Mr. Cleary states that he formed the view that the road outside the plaintiff’s property was taken in charge between boundary to boundary from ‘research’ that he carried out which yielded the excerpts from the schedules of 1930 and 1952 referenced above. He averred that the schedule came from the administrative section of the county council which deals with roads that have been taken in charge, from records that the council maintains.”
27. It would appear that by the time Mr. Cleary became involved in endeavouring to resolve the issue, the construction of 137 of the dwelling units was almost 90% completed by the appellants – notwithstanding s. 34(13) of the Planning and Development Act 2000 which provides that a person shall not be entitled solely by reason of a grant of permission to carry out any development. His evidence was that, as of 2015, the appellants were operating under an assumption – which, as he informed the court, he was satisfied had been established to be incorrect – that the width of the road taken in charge was 7.5 metres:-
“…This assumption had been incorporated into the planning permission for the development while the Condrons were disputing the taking in charge of the grass verge.” (para. 65 of principal judgment)
28. The judgment distilled the evidence of Mr. Cleary in regard to his attempts whilst employed by the Council to devise a solution to the impasse. The court noted that from this witness’s perspective it was relevant that the northern side of the road, opposite the respondent’s holding, was more or less a continuous straight line whereas on the southern side of Seamount Road, where the respondent’s property was situate, “the road was of variable width” (para. 66). His evidence demonstrated that the Council was well aware of the access difficulties. It would appear that the Council had adopted as a long-term strategy to facilitate extending the width of the roadway in the upper section of Seamount Road leading into the appellants’ development, the imposition of conditions to planning permissions granted for developments along the southern side of the road which required the applicant to set back their front boundary by four metres. This would have the effect over time of enlarging the width of the highway and facilitating the installation of a footpath along the southern side of Seamount Road. It would also coincide with the appellants’ access requirements for the Seamount development.
29. Mr. Cleary’s evidence, cited in the principal judgment at para. 66, stated: –
“With that in mind, then, having checked the width of the road at various cross-sections, it was proposed that we would accept a 4.8 metre wide road which is deemed to be sufficient to accommodate a vehicle travelling in each lane of that road and a footpath that varied in width from 1.6 down to 1.3.”
30. The court observed of Mr. Cleary’s evidence that the decision to install a footpath on the grass verge on the southern side of Seamount Road was arrived at by the county council in or about December 2015. The trial judge observed that:-
“…This is somewhat at odds with correspondence in relation to applications for a road opening licence referenced above and a map dated June 2015 identifying the southern side of Seamount Road as the location for the proposed footpath.” (para. 66 of principal judgment)
31. Mr. Cleary’s position throughout and in his evidence was very clear. He had written by email to both parties on 22 October 2015 stating that the road was taken in charge from boundary to boundary namely from the root of the respondent’s hedge to the root of the hedge on the northern side of the road directly opposite.
32. Having further reviewed the evidence, the trial judge had the following observations to make at para. 99 of the principal judgment: –
“It is a curious feature of this case that the limitation of space on the public road available for traffic namely 3.5m of tarmacadam surface without footpaths was one of the reasons given for the refusal of planning permission in 2003. This position was later abandoned by the planning authorities on the basis of a substituted measurement of 7.5m for the width of space available which though furnished by the council and relied upon in the 2009 planning decisions was later disavowed by Mr. Cleary. The measurement was given in the form of a purported certificate issued by the council as a road authority. Section 11(5) of the Roads Act 1993 states that such a certificate shall be prima facie evidence that a road is a public road. If this document was intended to be such a certificate its value has been considerably undermined by evidence in this case and I am not satisfied to consider it to be dispositive of the nature and extent of the area of Seamount Road that is a public road. Furthermore though the court does not base its decision on the sequence or nature of the planning decisions made in this case the abandonment by council officials of previously cited and accepted measurements of the road width in the 2003 and 2009 decisions has not, in the court’s assessment, been adequately addressed or explained in the evidence or in terms of the council’s rights and duties as a road authority on Seamount Road.”
Mrs. Maureen Treacy
33. The appellants contend (ground 4 of the notice of appeal) that the trial judge did not explicitly reject the evidence of Mrs. Maureen Treacy concerning maintenance of hedges and grass verges by Fingal County Council which, it is argued, supported the claim that the disputed grass verge had been taken in charge by the Council and that the evidence of “occasional” trimming of the disputed verge by the respondent and his family did not rebut this “crucial” evidence.
34. The evidence of Mrs. Treacy was that the decision to change the location of the footpath from the northern side of the road, as granted in the 2009 planning permission to the southern side was made by Mr. McGrath from the Council in consultation with the appellants’ expert, Mr. Goggins, the appellants having been advised “that it would be better from a planning perspective to install it on the Condron’s side of the road.” The court noted that:-
“…she considered that it would be beneficial for Mr. Condron to agree to the installation of the footpath on his verge because if he was to apply to have his land rezoned he would be obliged to set back his land and install a footpath.” (para. 78)
Mr. Martin Treacy
35. Mr. Martin Treacy, son of the third and fourth named appellants, claimed, inter alia, that the disputed grass verge had been used by pedestrians. He stated that “children used to walk across the fields from the local schools and walk down Seamount Road on the grass verge if there was a car coming” (para. 80). His evidence was that he had no recollection of the respondent maintaining the disputed grass verge and that the Council were “always up there maintaining it” (para. 81). He recalled that in the week prior to the hearing the Council had cleaned all the gullies and his evidence to the court was that there was an Eircom duct going from the pole outside some cottages further down the road on the southern side “all of the way to the pole between Condron’s property and Bettyville” (para. 81). The latter property is adjacent to the respondent’s property and had once been owned by the respondent’s sister.
Mr. Tommy McCormack
36. Mr. Tommy McCormack, a retired employee of Fingal County Council, gave evidence for the appellants that he had been employed as a general operative in the road maintenance department of Dublin County Council, the predecessor of Fingal County Council, from 1966; that he had first worked on Seamount Road in June 1966, three days after he commenced employment with the county council. He recalled his co-workers sprayed the footpaths, scattered chips and cleaned the stopcocks and that this activity was on the right-hand side of the road “going straight up towards Seamount House” (para. 83). His evidence was that the council maintained the grass verge. Hedges were cut with a slash hook. His evidence was that the maintenance of the hedge would have been carried out once a year. He produced his 2008 work diaries, particularly relying on an entry of 4 August 2008. The entry indicated that there were a lot of briars on the left hand side, i.e. the respondent’s side of the road, and that the hedgerow along the respondent’s property was trimmed back. His evidence was that a ledger was maintained recording the amount of materials used, the code they were working under and all of which “would have been documented and recorded by a clerk in the office of the county council.” (para. 86). The court observed (para. 86) that “no such ledger was produced in evidence”.
37. His evidence was that the activity of hedge trimming amounted to “trimming the briars along the road where they were protruding out into the road” (para. 87). They did not “dig into the hedge.” His evidence was that they had “trimmed/flailed the briars that were protruding out over the tarmacadam on the Condron side of the road”. He recalled that in or about ten inches would have been trimmed from those briars. Thus, as the trial judge noted, the witness clarified his earlier testimony and confirmed that “the maintenance of the hedging was confined to trimming briars that extended out over the surface top of the carriageway.”
Mr. Ray Goggin
38. The evidence of Mr. Ray Goggin, engineer on behalf of the appellants, was that, based on a review of measurements previously taken together with his own measurements, the hedge to hedge width available for road surface and footpath in front of the respondent’s property was a width of 7.5 metres (with a maximum of 7.84 metres at one point). The evidence of Mr. Goggin was that the width of road and footpath necessary for servicing the Seamount development for compliance purposes was 5 metres for the road surface together with 1.8 metres for the footpath on the southern side.
Assessment by trial judge of role of Fingal County Council
39. It is noteworthy that in the original grant of planning permission of May 2010 the proposed footpath was to be installed on the northern side of Seamount Road. The decision by the planning authority to vary the grant so that the footpath would instead be installed on the southern side of Seamount Road was made without notice to the respondent. Having considered the circumstances whereby this transpired, the trial judge observed:-
“67. The decision to install the footpath on the southern side of Seamount Road was executed by reference to the conditions of the planning permission but not in accordance with any prescribed protocol for engagement with those most affected. Rather, the decision was made following discussions between the defendants, their servants and agents, and officials of the county council. The court is satisfied that such a limited engagement concerning compliance with a condition and the agreement as to how a condition might be implemented does not require further public consultation with other interested parties under planning legislation. However, in this case the court is also satisfied that the process adopted and driven by the council which led to this decision effectively changed what the plaintiff hitherto understood to be the intended layout of the roadway and footpath during the planning process. The traffic and pedestrian issues identified post permission by Mr. Cleary’s testimony and the property issue were clearly known during the earlier public phase of the planning application but were not addressed adequately or at all by the local authority.”
40. The council’s decision to proceed to facilitate the appellants with the installation of the footpath on the southern side of Seamount Road was executed by its granting a road opening licence to the appellants on 16 April 2016 which precipitated the institution of the within proceedings seeking interlocutory relief.
41. As stated previously, Fingal County Council is not a party to these proceedings. However the extent to which the said council’s approach to the issue of the access way to the appellants’ Seamount development contributed, over time, to the current impasse between the parties, culminating in the within litigation, is the subject of an acute observation by the trial judge at para. 69 of the principal judgment: –
“Mr. Cleary states that he and the council accepted that the plaintiff may enjoy private ownership of the grass verge. He maintains, however, that this verge was taken in charge of the council and that it was available for construction of a road or footpath as occurred following the granting of the Road Opening Licence to the first named defendant on 16th April, 2016. He based his opinion on the ledger maintained by the taking in charge section of the council. However he was not aware of maintenance records for the relevant section of Seamount Road having never worked in that section in the council. During cross examination, Mr. Cleary stated that he considered the grass verge to be taken in charge irrespective of its maintenance and the laying of kerbing stones on the basis of the excerpts from the schedules of 1930 and 1952. The court is satisfied that the council clearly led the defendants to believe that the width of the road taken in charge was 7.5m. Mr. Cleary subsequently disavowed this measurement but only after the planning permission which accepted that measurement as accurate had been granted. The council then maintained that regardless of that fact the entire width of the roadway whatever it was had been taken in charge from boundary to boundary. He was satisfied that there were no extant maps showing limits to the taking in charge of Seamount Road.”
42. A central conclusion reached by the trial judge is to be found at para. 88 of the principal judgment where he determined: –
“I am satisfied that while some works were carried out by the council in or near the grass verge outside the Condron property it was of the most minimal and infrequent kind and largely focused upon keeping the surfaced carriageway in a reasonable state and free from material such as briars that might protrude from the verge onto the tarmacadam surface. Where council workmen trimmed grass in other locations, this was recorded in the diary entries. There is no such entry in respect of Seamount Road in the extract of diary produced to the court. Indeed Mrs. Treacy’s evidence confirms that such trimming as had occurred had ceased in recent years.”
43. The trial judge stated at para. 90 that he was satisfied: –
“…that the grass verge beyond the hedge on the plaintiff’s property comprises part of the plaintiff’s property by operation of a legal presumption that the ownership of land extends to the middle of the road abutting his property.”
The court observed that there is a legal presumption that the hedging on the edge of the respondent’s property beyond which the grass verge lies defines the area of ground which has been dedicated as a public road. He further held that the said presumption also applied to the area of similar ground on the northern side of the tarmacadam surface bounded by the hedging on his neighbour’s (Nolan’s) property. The principal judgment continued:-
“92. There is therefore a presumption that the public roadway at the time of the planning application in 2003 consisted of the black tarmacadam surface of approximately 3.5m and the margins on either side thereof up to the hedges. The court is satisfied that the court must apply this presumption to the whole space between the hedging in the absence of clear evidence to the contrary and that the facts giving rise to the presumption may constitute sufficient evidence in itself that this space has been dedicated as the public road.”
44. The trial judge was: –
“…satisfied that the grass verge was in reality an area of land to the side of the tarmacadam surface of which the plaintiff and his family made no use. However, the court is also satisfied that the plaintiff or some members of his family trimmed the grass on the verge occasionally. He did not believe in trimming his hedge. The court is also satisfied that the county council trimmed back elements of the hedge or briars that may have intruded upon the tarmacadam surface. However, I am satisfied that the council’s work to remove intruding vegetation was very limited and sporadic.” (para. 93 of principal judgment)
Evidential deficits
45. A number of crucial evidential deficits were identified by the trial judge in respect of the appellants’ claim that the disputed grass verge had been taken in charge by Fingal County Council:-
“94. The council does not appear to have any record of when or how the space was taken in charge as a public road. No maps have been produced or appear to exist of Seamount Road as a road taken in charge by Dublin County Council, Fingal County Council’s predecessor as a road authority or at some earlier stage. No records were produced in relation to the works carried out on the grass verge apart from the diary entries produced by Mr. McCormack which reflect a minimal engagement by the council with the grass verge though it is accepted by the plaintiff that the council repaired the road surface. In fact the council’s workmen were not seen by Mrs. Treacy to carry out any works on the verge for some eight years prior to these events.”
Public pedestrian footway claim
46. The trial judge rejected evidence as to the user of the disputed grass verge as a public pedestrian footway, concluding: –
“95. The court does not accept that the grass verge was used as some sort of public pedestrian footway over many years as a matter of right or otherwise by persons using Seamount Road including school children taking a shortcut. Up to the commencement of the development the tarmacadam surface would have carried very little traffic as there was only a few properties in the vicinity. I am satisfied that it was most unlikely that persons would be obliged to use the grass margin as opposed to the tarmacadam surface even if using that end of Seamount Road as a shortcut, quite apart from the fact that the physical obstruction of the overgrown hedge, the briars referred to and the long grass would likely discourage such use.”
47. The trial judge held at para. 96: –
“…whatever area of public road existed was taken in charge by the roads authority as set out in the schedule. This indicates that an average width of the entire of Seamount Road of 4.6m was taken in charge. This is clearly wider than the 3.5m of tarmacadam that existed in 2003. I accept Mr. Condron’s evidence that he installed a kerb and gravel outside the entrance to his home in the 1980s at the time his house was completed and that he also installed cobble-lock paving and a kerb outside his sister’s house in or about 2002 on the grass margin. While he says that he discussed this work with a council official prior to its execution it was by no means clear that this work was the subject of or required any permission from the council. These actions were clearly consistent with his assertion of ownership over this area of his property…”
48. In regard to certain installations placed on or under the grass margin, the judgment noted: –
“…evidence was also adduced of telegraph poles and cable link facilities installed in the grass margin area. I accept Mr. Condron’s evidence in relation to the private installation of water services works carried out by him and his brother, ultimately facilitating a supply to Seamount House in the vicinity of the grass margin. I am not satisfied that the evidence concerning the installation of poles and cable link facilities which was very limited in its nature and cogency negate the plaintiff’s property rights over the grass verge or on the facts of this case offer sufficient evidence to enable me to conclude that the presumption should stand and that the grass verge was a public road or was taken in charge by the roads authority.” (para. 96 of principal judgment)
49. In his evaluation of the evidence before him, the trial judge discounted testimony as to the unsatisfactory state of inter-personal relationships between the Tracey and Condron families, although he did observe: –
“…If relevant at all they might be said to impinge on the credibility of the various witnesses but I do not consider those issues to be central to my determination.” (para. 97 of principal judgment)
50. The court concluded at para. 98: –
“…I am satisfied that the presumption of the existence [sic] public road or right of way extends to the whole space between the hedges but that the presumption has on the evidence been rebutted by the evidence of the plaintiff’s continued exercise of control over his grass verge which he demonstrated by installing kerbing when enhancing his entrance, his decision to let the hedge grow and remain in its natural state, his and his family’s members trimming the grass on occasion and his assertion of his property interest in the verge during the later planning process: it was an interest acknowledged in the Road Audit Report. I am not satisfied that any of the grass margin on his side of the space was on the balance of probabilities used by the public as a footway or otherwise as a matter of public right.”
51. With regard to the certificate which issued on 7 August 2003 purporting to confirm 7.5 metres as the width of the roadway in the charge of the roads authority, the court firstly noted that the said measurement had been disavowed by Mr. Cleary in his evidence. The trial judge, as previously noted, rejected the proposition that in the circumstances of this case the certificate was determinative as to the nature or extent of the area of Seamount Road that was in charge notwithstanding s. 11(5) of the Roads Act 1993, which provides that such a certificate is prima facie evidence that a road is a public road.
52. A key conclusion as to fact is at para. 100 where the trial judge determined: –
“I am satisfied that the area of Seamount Road that was taken in charge at some stage was one of 4.6m in average width for the entire length of the road. Seamount Road narrows as it advances toward Seamount House which may explain the existence of 3.5m of hard surface in 2003. Alternatively, it may be that some of the verge in issue encroached marginally over the hard surface over time. However, the actual accepted average width of the central band of hard surface in 2003 was 3.5m. This is consistent with though somewhat less than the average width designated in the schedule. It seems to me that this gives some further support to the plaintiff’s case that the verge was not part of the public road and was not taken in charge.”
The court accordingly held that the appellants were trespassing upon the respondent’s property, the disputed grass verge, and had wrongfully interfered with it by digging it up and installing a footpath.
Notice of appeal
53. The appellants in their notice of appeal identified twelve grounds: –
(1) that the trial judge erred in finding that there was sufficient evidence to rebut the presumption that the grass verge between the respondent’s hedge and the blacktop surface of the roadway formed part of the public road in circumstances where Seamount Road had been taken in charge by Fingal County Council;
(2) the trial judge erred in finding that the said presumption was rebutted and the grass verge was not taken in charge or did not form a part of the public road in circumstances where the judge had made three findings of fact at para. 93 of the judgment:
(i) the respondent and his family made no use of the grass verge;
(ii) the respondent or some members of his family trimmed the grass verge “occasionally” only; and,
(iii) the respondent “did not believe in trimming his hedge” (from which it may reasonably be inferred that he did not trim it);
(3) the trial judge took into account a number of irrelevant considerations in concluding that the said presumption had been rebutted by the respondent’s evidence at para. 98 of the judgment, namely:
(i) the respondent’s decision to let the hedge grow and remain in its natural state;
(ii) the respondent’s assertion of his property interest in the verge during the later planning process;
(iii) the acknowledgment of the respondent’s interest by the consultants who prepared the Road Safety Audit Report; and,
that the said presumption was not capable of being rebutted by any of these matters as taking in charge and ownership are not mutually inconsistent;
(4) the trial judge erred in not making any finding of fact as to the extent to which the Council had maintained the grass verge (as distinct from the respondent’s hedge) by trimming the grass verge in circumstances where the fourth named appellant, Maureen Tracey, gave evidence that the Council maintained the hedges and grass verges every eighteen months or two years, although she had not seen the Council maintain Seamount Road in around seven or eight years: “The said evidence, which was not rejected by the judge, was crucial as it supported the taking in charge by the Council, and was not rebutted by the ‘occasional’ trimming of the grass verge by the plaintiff or his family which the judge found had occurred”;
(5) the trial judge erred in making contradictory findings, namely that:
(i) the respondent and his family carried out maintenance of the grass verge occasionally (which the judge considered to be evidence relevant to the rebuttal of the presumption that the grass verge formed part of the public road); and,
(ii) the grass verge was incapable of use by the public as same consisted of an overgrown hedge, briars and long grass (para. 95);
(6) the trial judge erred in concluding that it was “most unlikely that pedestrians using Seamount Road would be obliged to use the grass margin (verge) as opposed to the tarmacadam surface without having regard to or giving any or any sufficient weight to the fact that the narrow width of the tarmacadam surface in or about the location of the plaintiff’s property (being 3.5 metres in width) would render it necessary for pedestrians to use the grass verge for safety purposes where a motor vehicle was approaching”;
(7) the trial judge failed to have regard to the fact and/or the reasonable likelihood that the grass verge “due to the narrow width (3.5 metres) of the tarmacadamed carriageway, must have been used of necessity as an area ancillary to the tarmacadam roadway or carriageway, for the safety of pedestrians, particularly when motor vehicles were approaching, and therefore formed part of the public road.” In the alternative, the judge failed to have “regard to the fact that Fingal County Council had a statutory obligation, qua road authority, to provide for the safety of pedestrians using the public road by ensuring that there were adequate footpaths or verges. It therefore required very strong and clear evidence and/or findings of the court to rebut the presumption that the verge had been taken in charge for that purpose, and the evidence adduced by the plaintiff and/or findings of the court, were not capable of rebutting the said presumption in these circumstances”;
(8) the trial judge erred in finding that the said presumption was rebutted by the respondent exercising “control” over the grass margin by installing kerbing in circumstances where the undisputed evidence established that Seamount Road had been taken in charge prior to that and that the subsequent installation of the said kerbing was not capable of determining the extent of Seamount Road that was taken in charge at the relevant time;
(9) the trial judge erred in finding that the presumption was rebutted by the installation of kerbing by the respondent “in that the judge did not have any or any adequate regard in that context to his own finding that the plaintiff had consulted with an employee of Fingal County Council as to how to remedy a problem of water ingress from the grass verge to the plaintiff’s property, and that it was arising out of that consultation and/or advice received from the said employee that he installed the cobble-lock, from which it was reasonable to infer that the plaintiff accepted that the Council, qua road authority, had statutory functions in relation to the verge and that the verge had therefore been taken in charge”;
(10) the judge erred in finding that the width of the road that was taken in charge only extended to a width of 3.5 metres “despite the fact that the carriageway of Seamount Road was of variable width, and did not have any or any adequate regard to the fact that it would not be practical for a council to carry out its functions of maintenance and repair of the public road in respect of a road of variable width”;
(11) the trial judge erred in failing to have any or any adequate regard to the fact that the register/ledger of public roads maintained by Fingal County Council or its predecessors in title established that Seamount Road had been taken in charge without distinguishing any area between the hedges that was not taken in charge, such as verges or footways and that, therefore, the evidence adduced by the respondent was incapable of rebutting the presumption that the full extent of the area between the hedges had been taken in charge; and,
(12) the trial judge erred in failing to have any or any due regard to the credibility of the respondent’s evidence in resolving conflicts in the evidence adduced by or on behalf of the respondent and that adduced by or on behalf of the appellants and in particular failed to have any or any due regard to the failure of the respondent to disclose the fact that the appellants had obtained a certificate of taking in charge from Fingal County Council when he sought ex parte relief from the High Court in the within proceedings “which material non-disclosure went to the credibility of the plaintiff.”
54. The appellants in their written submissions further refined the above grounds of appeal and contended that there are five discrete issues to be addressed by the court:
(1) whether the respondent’s evidence of carrying out acts of maintenance of the grass verge and/or hedge is capable as a matter of law of rebutting the “hedge to hedge” presumption or of having the effect of extinguishing any public right of way;
(2) whether the assertion of ownership by the respondent in terms of installing kerbing/cobble-lock at the entrance to his property and the adjacent property, which was in the ownership of his sister, in the area of the grass verge is capable as a matter of law of rebutting the “hedge to hedge” presumption or of having the effect of extinguishing any public right of way;
(3) whether (a) the evidence that maintenance by the Council of the hedge along Seamount Road was only sporadic and/or (b) the fact that evidence of their maintenance of the grass verge was minimal and non-existent for a period of eight years prior to the date of the hearing are capable of rebutting the hedge to hedge presumption;
(4) whether there were certain matters of evidence which the High Court ought to have taken into account as supporting the view that a right of way existed over the grass verge or which tended to support the view that it had been taken in charge, but were not considered to be relevant and/or were not given any weight by the trial judge;
(5) whether the court erred in law in failing to take into consideration the lack of credibility of the respondent’s evidence particularly in the light of the failure to disclose significant matters in the context of the ex parte application brought by the respondent for injunctive relief.
55. The first and second main issues as identified by the appellants go beyond consideration of what is required to rebut the “hedge to hedge” presumption and explicitly seek a determination as to whether the acts in question had the effect of extinguishing any public right of way.
56. The extinguishment of a public right of way is not a point explicitly raised in any of the twelve grounds of appeal in the appellants’ original notice of appeal. I observe in passing that the transcripts across the eleven-day hearing suggest that the issue of extinguishment of the right of way appears to have first arisen on day nine during cross-examination of the appellants’ witness, Mr. McClean, by counsel for the respondent.
57. The respondent contended that the key issue in this appeal is whether there was any credible evidence to support the findings of the trial judge and if so, this court is bound by those findings.
The cross-appeal
58. The respondent opposed the appeal and in his notice of cross-appeal contended that the trial judge erred in finding that the appropriate jurisdiction in which to commence the proceedings was the Circuit Court. Reliance was placed on the state of the law at the date of the institution of the proceedings and the date of the hearing. It was further claimed that the trial judge erred in so finding where the decision of the Supreme Court in Permanent TSB plc v. Langan [2017] IESC 71, [2018] 1 I.R. 375 was not delivered until December 2017, some six weeks after the hearing of the action had finished and prior to the delivery of the judgment of the High Court judge. The trial judge in particular had ordered the appellants to pay the respondent’s costs at the Circuit Court scale with a certificate for Senior Counsel.
59. At the hearing of this appeal it was agreed that the issues in the cross-appeal pertaining to costs would be dealt with subsequent to the disposal of the appellants’ appeal in the first instance.
The standard of review
60. An appellate court will only interfere with findings of fact in very limited circumstances. With regard to the legal status of the findings of fact on the part of the trial judge, the principles governing such findings have been set out in a number of judgments of the Supreme Court including Northern Bank Finance v. Charlton [1979] I.R. 149, Hay v. O’Grady [1992] 1 I.R. 210 and Leopardstown Club Ltd. v. Templeville Developments Ltd. [2017] IESC 50, [2017] 3 I.R. 707.
61. O’Donnell J. in Rosbeg Partners v. LK Shields (a firm) [2018] IESC 23, [2018] 2 I.R. 811 characterised the import of Hay v. O’Grady thus:-
“…The division of functions between appellate courts and trial courts means that appellate courts must respect and give due deference to a trial court’s fact finding function. The corollary of this of course, which is perhaps less often adverted to, is the importance of the trial court approaching that task rigorously, conscientiously, and testing its preliminary conclusions, with an appropriate degree of scepticism, and thereafter setting out the facts found and the inferences drawn in a way which permits review.” (para. 24)
62. The principles were reiterated by the Supreme Court in Harlequin Property (SVG) Ltd. v. O’Halloran [2019] IESC 76, a judgment of MacMenamin J. delivered on 1 November 2019, wherein he observed at para. 15: –
“Such findings can be seen as falling into two categories: those the answer to which give a factual resolution of conflicting oral testimony, and those the answers to which do not resolve conflicts of such testimony, but are an evaluation of facts found or admitted (Northern Bank, per Henchy J., at p. 190). Another brief way of describing these two categories is, in the first category, findings of fact, and in the second, inferences from facts. The legal authorities emphasise that an appellate court must proceed on the basis that it did not enjoy the opportunity of seeing and hearing the witnesses as did the trial judge who heard the substance of the evidence, and was able to observe both the manner in which it was given and the demeanour of the witnesses (Hay v. O’Grady, per McCarthy J. at p. 217).
16. It follows that, where such findings of a trial judge are supported by credible evidence, an appellate court will generally be bound by them no matter how voluminous and apparently weighty testimony to the contrary might be (Hay v. O’Grady, at p. 217). An appellate court will only set aside a finding of fact based on one version of the evidence when, on taking a conspectus of all the evidence, it appears to that court that, notwithstanding the advantages the tribunal of fact may have had in seeing and hearing the witnesses, the version of the evidence on which the judge acted…could not reasonably be correct (Northern Bank, per Henchy J. at p. 191). An appellate court should, therefore, be slow to substitute its own inferences from findings of fact where such inferences depend on oral evidence heard by the trial judge (Leopardstown Club, per Denham C.J. at para. 82). It may only do so for a very clear reason. Of particular relevance in this appeal is that a finding as to credibility of a witness giving evidence is a finding of fact (Leopardstown Club, per Denham C.J. at para. 39).”
63. Clarke C.J. in Morrissey v. Health Service Executive [2020] IESC 6 observed at para. 7.3:-
“The legal position is clear. The classic statement of the correct approach to be taken by an appellate court in respect of findings of fact made at first instance is as set out by McCarthy J. in Hay v. O’Grady [1992] 1 I.R. 210 at pp. 217-218. In particular, it was held that an appellate court is bound by the findings of fact made by the trial judge when they are supported by credible evidence. Further, McCarthy J. emphasised the importance of a clear statement by the trial judge of his findings of primary fact, the inferences to be drawn and the conclusion that follows.
7.4. This latter obligation on the trial judge underpins the case law which subsequently developed on the question of the appropriate engagement on the part of a trial judge with the competing arguments of the parties to litigation. Any party is entitled to a judgment which states why the party concerned won or lost. In Doyle v. Banville [2012] IESC 25, [2018] 1 I.R. 505, this Court held that, to this end, it was important that the judgment of the trial court engages with the key elements of the case made by both sides and provides a reasoned conclusion as to why the case on the facts made by one or other side is preferred. In my judgment in that case, a distinction was drawn between circumstances in which there may have been a significant and material error in the way in which the trial judge reached a conclusion as to the facts, in respect of which an appellate court can and should intervene, and a case where the trial judge was simply called on to prefer one piece of evidence to another and does so for a stated and credible reason. In the latter case, it is not the function of the appellate court to revisit the trial judge’s findings.
7.5 The obligation on the trial judge to engage with and adequately address the competing arguments of the parties on the facts was restated by this Court in Wright v. AIB Finance & Leasing and ors [2013] IESC 55 and Ulster Bank v. Healy [2015] IESC 106. Importantly, in Leopardstown Club Ltd. v. Templeville Developments Ltd. [2017] IESC 50, [2017] 3 I.R. 707, MacMenamin J. set out in clear terms the approach to be taken by an appellate court when reviewing the engagement of the trial judge with the arguments of the parties to litigation, at paras. 109-111:―
‘109. Save where there is a clear non-engagement with essential parts of the evidence, therefore, an appeal court may not reverse the decision of a trial judge, by adverting to other evidence capable of being portrayed as inconsistent with the trial judge’s primary findings of fact.
110. “Non-engagement” with evidence must mean that there was something truly glaring, which the trial judge simply did not deal with or advert to, and where what was omitted went to the very core, or the essential validity, of his findings. There is, therefore, a high threshold. In effect, an appeal court must conclude that the judge’s conclusion is so flawed, to the extent that it is not properly “reasoned” at all. This would arise only in circumstances where findings of primary fact could not “in all reason” be held to be supported by the evidence (see Henchy J. in V.C. v. J.M. and G.M. [1987] I.R. 510, at p. 523, quoting his earlier judgment in Northern Bank Finance v. Charlton [1979] I.R. 149). “Non-engagement” will not, therefore, be established by a process of identifying other parts of the evidence which might support a conclusion other than that of the trial judge, when there are primary facts, such as here. Each of the principles in Hay v. O’Grady [1992] 1 I.R. 210 is to be applied.
111. The task faced by the judges of our appeal courts is already too onerous. But the task would be made yet more onerous were appeals to be reduced to a piece-by-piece analysis of the evidence, in an effort to show, on appeal, that the trial judge might have laid more emphasis on, or attached more weight to, the evidence of one witness, or a number of witnesses, or one document, or a number of documents, rather than others on which he or she relied.’ (emphasis included in original)”
Clarke C.J. continued: –
“7.6 In the context of that case law, it is, however, important to emphasise a number of features which are of some relevance to the issues which arise on this appeal.
7.7 First, it is clear that what is spoken of as a lack of engagement in those authorities relates not so much to the way in which a trial judge conducted the proceedings but rather to the way in which the trial judge determined the issues in the judgment. A failure to engage, in the context in which it is used in the relevant case law, clearly refers to the failure on the part of a trial judge to set out the reasons why central or important aspects of the case of one or other party on the facts were not accepted.”
He further observed: –
“7.9 Second, it is worth adding that it is clear from that case law that it is far from sufficient for a party seeking to appeal a decision of a trial court to search through the undergrowth of the pleadings and evidence so as to find some tangential or minor aspect of the case which is not expressly referred to in the judgment. The test, therefore, involves, as MacMenamin J. pointed out in Leopardstown Club, a high threshold which requires the court to address the question of whether, taking that party’s case as a whole, can it be fairly said that the trial judge has significantly failed to adequately address the reasons for rejecting the appellants’ case on the facts?”
Public rights of way
64. The facts in the instant case typify one of the two situations where an individual is permitted to assert a public right of way; namely, where the user is sued and raises or asserts the right to exercise a public right of way as a defence. The determination in the instant case affects private rights of the parties only and has no application to any other party nor to the roads authority or planning authority. For an individual to otherwise bring a claim asserting a public right of way, it is necessary to apply to the Attorney General for consent to pursue a relator action which is an action in rem.
65. A public right of way must be open to the public at large and not to any limited section or subgroup. There was significant agreement between the parties with regard to the relevant legal principles governing the creation of a public right of way.
66. Two key common law presumptions are engaged on the facts of this case and will be considered in turn:
i. usque ad medium filum viae; and,
ii. the “hedge-to-hedge” presumption.
Usque ad medium filum viae
67. Landowners adjoining the public highway are each presumed to have contributed a portion of the land to the formation of the highway. Frequently, since a highway will have been created in the distant past, actual knowledge of the ownership of the subsoil is no longer capable of ascertainment.
68. There is long authority for the proposition that a strip of land lying between the highway and the enclosed land adjoining it is presumed also to belong to the owner of that land. In Doe d. Pring v. Pearsey (1827) 7 B. & C. 304 Bayley J. observed:-
“Now it is a prima facie presumption, that waste land on the sides, and the soil to the middle, of a highway belongs to the owner of the adjoining freehold land. The rule is founded on a supposition, that the proprietor of the adjoining land at some former period gave up to the public for passage all the land between his inclosure and the middle of the road. I think that rule applies not only to freehold but to copyhold lands also.”
The decision of Steel v. Prickett (1819) 2 Stark 463 was considered by the court as an authority for the proposition.
69. Bland in Highways (1st ed., Round Hall, 2020) notes at paras. 5.17 and 5.18:-
“…the owner of land adjoining a highway is presumed to be the owner also of the soil of one half of the highway up to the middle line…
At common law it is presumed that the owner of land adjoining a public right of way owns the highway ad medium filum viae up to the centre point of the highway.”
70. The respondent is thus prima facie the owner of the disputed grass verge. The trial judge so found at para. 90 and that finding is not under appeal.
71. I do not understand that there is any dispute between the parties regarding the operation of the above presumption in this case.
The title of the respondent
72. The respondent’s title derives from an Indenture of 21 April 1952 made between the 7th Baron Talbot de Malahide (otherwise Lord Talbot de Malahide) and others, of the one part, and John Condron, the respondent’s father.
73. Bland in Highways describes the cognate conveyancing presumption to usque ad medium filum viae which operates in favour of the landowner thus at para. 5.17:-
“…where a conveyance of land adjoining a highway is made by a grantor owning land on one side of it only, then if he can prove, or is presumed, to own also the soil of the highway up to the halfway line, there is a presumption that the soil of one half of the highway is included in the grant. Both of these presumptions may be rebutted.”
Dedication and acceptance
74. It is not in dispute between the parties that a public right of way or highway is a route over which the public have a right of passage. It is created by actual or inferred dedication by the owner and acceptance by the public or otherwise pursuant to statute. A public right of way is for the benefit of the public at large and is not appurtenant to land. As the Supreme Court observed at para. 54 of Walsh v. Sligo County Council [2013] IESC 48, [2013] 4 I.R. 417:-
“A public right of way is not the same as a public road, but the common law treats it as a highway. It is a right available to any member of the public.”
A public right of way may be adopted by the road authority whereupon it acquires a co-equal status as a “public road”.
75. The public highway in question at this location is deemed to have come into existence pursuant to the principles of common law, namely, dedication and acceptance as a public highway and not by a process of grant. The common law doctrine of dedication and acceptance operates such that, once complete, they are conclusive of the creation of a public right of way and cannot later be repudiated by the relevant landowner or a successor in title. Inevitably, actual and express dedication, or proof of same is indeed rare. However, as the Supreme Court reiterated at para. 7 of Walsh v. Sligo County Council, “[d]edication may be inferred from a consideration of all the circumstances”.
76. Both aspects – dedication by the owner and acceptance by the public – must exist to create a public road or a public right of way pursuant to common law. With regard to the burden of proof on a party who asserts the element of acceptance of a way as a public right of way, clearly no single individual can speak on behalf of the public. As Brett J. observed at p. 715 in Cubitt v. Lady Caroline Maxse (1872-73) L.R. 8 C.P. 704:-
“Acceptance by the public is ordinarily proved by user by the public; and user by the public is also evidence of dedication by the owner. Both dedication by the owner and user by the public must concur to create a road otherwise than by statute.”
It is accordingly necessary to show acts on the ground that amount to acceptance by the public generally of the portion of ground in question as part of the public highway by its user as such.
77. In Hale v. Norfolk County Council [2001] Ch 717 Chadwick L.J. at para. 20 emphasised the clear distinction between public rights of way arising under common law and the creation of such rights pursuant to statute:-
“I accept that, in many cases, it may well be possible to infer, from acts done by the landowner in the course of laying out a new street in accordance with existing byelaws, that the owner intends to dedicate the land on which those acts are done to public use as part of the highway. And it may well be possible to infer acceptance by the public from user of that land as part of the highway; for example, where the dedicated land forms a continuation of an existing verge or walkway next to the carriageway. But the creation of public rights of way by that means is an example of the operation of the common law doctrine of dedication and acceptance. It is not an example of the creation of rights under statutory powers.”
78. Dedication and acceptance can be inferred at common law from uninterrupted long user by the public. The decision of R. v. The Inhabitants of the Tithing of East Mark (1848) 11 Q.B. 877 at p. 884 has long been accepted as authority for the proposition that continual user over a very long period generates an almost irresistible presumption of dedication. In that case, 50 years user constituted evidence of intention to dedicate the way as a public highway per Erle J. However, as the Supreme Court made clear in Walsh v. Sligo County Council, having analysed the jurisprudence including the decisions of Scott L.J. and Slesser L.J. in Jones v. Bates [1938] 2 All E.R. 237, although evidence of long user is evidence from which dedication might be inferred, it will not compel a court to find that dedication of a public right of way has taken place. Rather dedication is a question of fact in each particular case.
79. At para. 59 of Walsh v. Sligo County Council, the Supreme Court distilled the 19th Century jurisprudence on the essential requirement for the establishment of a public right of way, stating:-
“…The first step is proof of the use, as of right, by the public of the way over the owner’s land. The second step is that, depending on the duration, frequency, or intensity, of that user, an inference may be drawn that the landowner has dedicated the way. Such an inference, sometimes called a presumption, can be drawn only after consideration of all the facts. The third step is that it may be concluded that the public has accepted the dedication.”
80. The Supreme Court at para. 57 in Walsh v. Sligo County Council considered that the “most complete consideration of the law regarding public rights of way” was to be found in Folkestone Corporation v. Brockman [1914] AC 338, noting at para. 58 that its effect was reversed in England and Wales by virtue of the provisions of the Rights of Way Act 1932. No similar statutory provision was ever enacted in this jurisdiction.
81. The Supreme Court in Walsh (inter alia at paras. 59, 69, 74, 94 and 222) reiterated the dicta of Lord Dunedin in Folkestone Corporation v. Brockman that where there is evidence of long uninterrupted user as of right by the public, the court, depending on the duration, frequency or intensity of that user may infer that the owner dedicated and intended to dedicate the way to the public and that the public accepted that dedication. Whether there was in fact dedication is a question of fact to be decided in the light of all the evidence and not a presumption of law, albeit that it is never necessary to point to any express act of dedication. The process is one of inference, same to be drawn from the strength of the evidence of user and the fact that the user was as of right. As noted at para. 68 of the judgment, “[t]he burden of proof of dedication lies on the person alleging it.”
82. As to proof of dedication, the Supreme Court stated at para. 104 that the focus is on the intention of the landowner: –
“…Parke B. said, in Poole v. Huskinson (1843) 11 M. & W. 827 that ‘a single act of interruption by the owner is of much more weight, upon the question of intention, then many acts of enjoyment.’ That may somewhat overstate the true position.”
At para. 68 the Supreme Court observed: –
“…The matter cannot be decided without consideration of the whole body of evidence. Lord Atkinson [in Folkestone Corporation v. Brockman], following extensive citation of authority, stated at p. 367 that he had been unable to ‘find any case, in which there was even a suggestion that, when the evidence of user is of the strongest kind and is not rebutted, the judge is entitled to direct the jury to find a verdict in favour of dedication’. He continued:-
‘The crucial matter being the existence in the mind of the owner of an intention to dedicate, the inference of that fact, if drawn at all must be drawn by the judge as a fact.’”
83. At paras. 99 and 100 the court further elaborated on the intention to dedicate, focusing in particular on the actions of a landowner:-
“On the other hand, where there is clear and uncontradicted evidence of extensive public user for a long time, the landowner will not easily resist the inference of dedication by proof of purely subjective and uncommunicated objection. Lord Blackburn in the passage from Mann v. Brodie (1885) 10 App. Cas. 378, implied that dedication would be inferred if the landowner took ‘no steps to disabuse [the public] of that belief’ that the way had been dedicated. The decision of the House of Lords in R. (Godmanchester T.C.) v. Environment Secretary [2007] UKHL 28, [2008] 1 AC 221 concerned the registration of a public footpath on a public map, which depended on whether, under s. 31(1) of the (English) Highways Act 1980, there was ‘sufficient evidence that there was no intention during that [20 year] period to dedicate it.’ This provision enables a public right of way to be established by 20 years of user, i.e., by prescription, and places the burden on the landowner to negative intention. Clearly, this statutory provision represented a radical shift from the position at common law. The burden was shifted to the landowner to produce positive evidence of a lack of intention to dedicate. Nonetheless, the statements of the Law Lords concerning the nature of the evidence which would satisfy the section are helpful. Lord Hoffmann was of the view, at p. 96, that ‘the evidence must be inconsistent with an intention to dedicate.’ Like Lord Hope, he referred to Mann v. Brodie and the necessity to ‘disabuse’ the public. So far as the section was concerned, Lord Hope noted, at p. 101, that the common law had not ‘laid down fixed rules’ but was of the view that ‘the landowner must communicate his intention to the public in some way’.
Whether the landowner has communicated his intention not to dedicate is a matter of fact. Looking at all the circumstances, it has to be determined objectively whether, in spite of the evidence of user, the landowner has shown he resisted the dedication. If he has acquiesced in the user, it will normally be inferred that he has dedicated. Action to the contrary effect may take many forms.”
Inference of dedication and public user
84. At para. 92 of its judgment, the Supreme Court in Walsh discussed the nature of public user which can lead to the inference of dedication: –
“The user which can lead to the inference of dedication of a public right of way must be user as of right. It must be exercised nec vi (without force), nec clam (openly, i.e., not in secret), nec precario (not be based on permission). As was stated by Lord Kinnear in Folkestone Corporation v. Brockman…at p. 352:-
‘public user…will be good for that purpose [proof of dedication] only when it is exercised under such conditions as to imply the assertion of a right, within the knowledge and with the acquiescence of the owner of the fee.’
93. User as of right does not require that the users believe subjectively that they have a right to use the way. The test is objective.”
85. The Supreme Court reiterated that prescription is not the test for the establishment of a public right of way, ergo user as of right is not automatically “right creating” nor does it dispense with the obligation to prove dedication of the way to public user by the landowner and consequent acceptance by the public.
86. At para. 79 the Supreme Court in Walsh reiterated the view of Ó Dálaigh C.J. in Connell v. Porter (1972) [2005] 3 I.R. 601 that expenditure of public money on the repair or maintenance of the road, coupled with evidence of user, is strong evidence from which dedication may be inferred. However, it was made clear that that expenditure of public money alone does not establish dedication. Crucially, user and acceptance by the public must be demonstrated in addition.
Hedge-to-hedge presumption
87. This presumption is expressed thus by Bland in Highways (1st ed., Round Hall, 2020) at para. 4-03:-
“Where there are fences, walls, hedges or other boundary features between which a metalled surface or via trita passes, a rebuttable presumption known as the ‘hedge-to-hedge’ rule can arise to the effect that the public right of way extends to cover the area so enclosed. Where there is a fence on one side only, the presumption is equally applicable to the space between the via trita and that fence.”
It is common case that this rebuttable presumption does arise in the instant case.
88. At para. 4.09 the author observes:-
“The hedge-to-hedge rule should not cloud the primary question of fact as to whether the boundary was erected to separate the highway from the land that is not subject to public right. It is important to distinguish the question of fact as to the purpose of the boundary from the presumption that may afterwards arise. There is no presumption involved in the determination of the primary fact of the purpose of the boundary.”
89. The existence of strips of ground to the side of the metalled track or via trita does not necessarily mean that the public highway is confined to the said track. Halsbury’s Laws of England (5th ed., vol. 55, Butterworths, 2019) at para. 232 at fn. 1 suggests:-
“The existence of such strips is generally accounted for by the fact that before roads were properly surfaced additional space was required to permit of deviation in wet weather (Steel v. Prickett (1819) 2 Stark 463 at 469)…”
The authors note that: –
“…in many cases strips of land alongside the metalled track form part of the dedicated highway and are equally subject to the right of the public.” (para. 232)
Halsbury, in referencing A-G (Cork County Council) v. Perry [1904] 1 I.R. 247, Ir. C.A. and the earlier English authority of Elwood v. Bullock (1844) 6 Q.B. 383 at 409, notes:-
“…It seems that in order to prove that land outside the metalled track forms part of the highway, regular user of it must be proved, and user confined to a reasonably narrow strip; user attributable to persons merely straying from a highway is of little value as evidence of dedication…” (fn. 2 at para. 232)
90. The leading Irish authority on the hedge to hedge presumption is A-G (Cork County Council) v. Perry. In considering the said judgment in this context, Bland in Highways (1st ed., Round Hall, 2020) at para. 4-05 observes:
“…There was no evidence of public use of the area as a public thoroughfare, and evidence of casual public use such as the storing of materials by road contractors…could not establish a public right of way. Fitzgibbon L.J. stated that the onus of proving that a disputed area is subject to a public right of way rests on he who asserts the public right.”
The approach to the onus of proof as to public user as set forth by Fitzgibbon L.J. in Perry was followed in subsequent authorities including Holland v. Dublin County Council (1979) 113 I.L.T.R. 1 at p. 2.
91. At issue in A-G (Cork County Council) v. Perry was the extent of a right of way along a roadway built along the seashore at Kinsale at the foot of a cliff. The defendant acknowledged the existence of a public right of way along the metalled road but disputed that the strip of land of varying width along the edge of the road formed part of the highway. The disputed portion was not metalled. The defendant claimed that it was part of his private property which adjoined the highway. The central issue accordingly was what constituted the boundary of the highway. The defendant had stored building materials on the disputed strip of ground. The evidence adduced showed no use by the public of the disputed strip as a highway. Nor was there any evidence of obstruction by the defendant of the metalled road. Reliance was placed exclusively on presumptions and evidence of user because no documentary evidence of title to the highway was forthcoming.
92. At first instance the Vice-Chancellor considered at p. 251 that from the nature of the disputed strip of land it was, “incredible that it was used as part of this highway. I do not believe that there was ever a reasonable or bona fide attempt, or intention, or desire so to use it.”
93. The plaintiff appealed to the Court of Appeal. Having cited earlier English authorities, including Turner v. Ringwood Highway Board (1869-70) L.R. 9 Eq. 418, Nicol v. Beaumont (1883) 53 L.J. Ch. 853 and R. v. United Kingdom Electric Telegraph Co. (1862) 31 L.J. (M.C.) 166, Fitzgibbon L.J. observed at p. 254 that: –
“…where a highway has been set out, or fenced at each side by metes and bounds, and afterwards, for a length of time, or in course of time, part only of the space so defined has been metalled and used as a road, the public right of passage, prima facie, and unless there is proof to the contrary, extends to the whole space set out; in the absence of clear evidence to the contrary, or with slight evidence of user of the land fringing the actual road, by foot passengers, or for other public purposes connected with the highway, even the owner cannot appropriate or obstruct the more or less waste and useless land adjoining the metalled road. But in such cases the proof of original dedication of the whole space rests on the plaintiff, though such proof is sufficiently supplied by the evidence of the original setting-out or fencing of the space in question.”
The above passage was cited with approval in Holland v. Dublin County Council.
94. Evidence was adduced on appeal in connection with the title of the defendant’s predecessor in title in circumstances where there was no other visible boundary by which the extent of the property dedicated to the highway could be defined other than a water table. Fitzgibbon L.J. noted at p. 257 that in such circumstances, “the relator is driven to proof of user, in order to extend the public highway beyond the visible roadway”. He concluded at p. 257: –
“…I can find no evidence of the actual user of any land outside the water table for any strictly highway purpose; i.e. no one ever used the place in dispute as a thoroughfare.” (emphasis in original)
It was noted that the disputed ground was used for, inter alia, the drying of nets, repairing boats and storage of timber. Fitzgibbon L.J. concluded at p. 259 that no public right of highway had been established outside or beyond the metalled road.
95. Fitzgibbon L.J. emphasised that in cases of this kind: –
“…regard must be had to the nature and character of the land in question, when considering evidence of user. The land here was of little use to anyone, it was incapable of profitable user to any substantial extent, it was open to trespass, and under such circumstances the casual use of it for such purposes as the standing of cattle, the temporary storage of stones, the deposit of rubbish, or the like cannot establish public rights of highway, or defeat private rights of ownership or occupation.” (p. 259)
96. Walker L.J., concurring in Perry, noted that there was almost an absence of evidence of any actual highway use by the public of the strip in dispute (p. 260).
97. Holmes L.J. at p. 265 observed: –
“That public right sought to be enforced does not depend on ownership of the soil. If the land in dispute be part of the highway, the defendant, however good his title to it, ought to be restrained from acts which admittedly obstruct its use by the public. If it is not part of the highway, the plaintiff’s case is not advanced by showing that the defendant is not the owner.”
He noted that with the exception of one unconvincing witness who said he had seen the disputed portion walked on, “but not often, many years ago, no one has testified to its user as part of the highway” (p. 267). He noted at p. 268 that the plaintiff had “failed to prove that it was ever used, or ever fit to be used, for any kind of public traffic.”
98. With regard to evidence adduced by the County Council in Perry that contractors for the repair of roads in the district had from time to time used the disputed ground for depositing and preparing stones required for the roadworks, Holmes L.J. observed at p. 269: –
“It is usual to have on the side of highways spots provided for storing and breaking road metal; and I have no doubt that they, like the rest of the way, are dedicated to the public, although no traffic passes over them. But the places I have referred to are of very limited extent, and easily recognised. It would be absurd to suppose that a strip of land of the length and breadth of the ground in question was ever intended for this purpose; and its occasional use, therefore, is of little weight.”
99. Holmes L.J. at p. 270, in reviewing the testimony of the witnesses, concluded: –
“There is a body of testimony, convincing and uncontradicted, showing that as long as memory goes back the disputed land has been used for purposes to which a public thoroughfare could not be legally applied.”
He considered that the activities such as the user for the repairing of nets, construction of boats, gates and so forth did not constitute evidence of dedication to the public for the purpose of traffic nor on the other hand was it “capable of profitable use by a private owner” and that the ground in question had come “to be regarded by persons in the neighbourhood as a place that might be occupied for temporary convenience” (p. 270). The plaintiff thus failed to establish in evidence that the disputed portion of ground was part of the road and the appeal was dismissed.
100. The fence to fence presumption was stated by Martin B. in R. v. United Kingdom Electric Telegraph Co. in the following terms at p. 167: –
“In the case of an ordinary highway, although it may be of a varying and unequal width, running between fences on each side, the right of passage or way, prima facie, and unless there be evidence to the contrary, extends to the whole space between the fences, and the public are entitled to the use of the entire of it as the highway, and are not confined to the parts which may be metalled or kept in order for the more convenient use of carriages and foot passengers.”
101. The precise ambit of that dictum and its import was considered by Goff J. in Attorney-General v. Beynon [1970] Ch. 1 at p. 12 where he stated: –
“It is clear that the mere fact that a road runs between fences, which of course includes hedges, does not per se give rise to any presumption. It is necessary to decide the preliminary question whether those fences were put up by reference to the highway, that is, to separate the adjoining closes from the highway or for some other reason. When that has been decided then a rebuttable presumption of law arises, supplying any lack of evidence of dedication in fact, or inferred from user, that the public right of passage, and therefore the highway, extends to the whole space between the fences and is not confined to such part as may have been made up.” (emphasis added)
He continued at pp. 12 to 13: –
“It seems clear to me, however, as a principle has developed, that one is to decide that preliminary question in the sense that the fences do mark the limit of the highway unless there is something in the condition of the road or the circumstances to the contrary. This was the basis of the decision of Warrington J. in Offin v. Rochford Rural District Council [1906] 1 Ch 342, where he said at p. 354: –
‘It seems to me that the result both of that case [that was Neeld v. Hendon Urban Council (1899) 81 L.T. 405, C.A.] and of Reg. v. United Kingdom Electric Telegraph Co. Ltd. (1862) 31 L.J.M.C. 166; 6 L.T. 378, is this – that the mere existence of fences on either side of a highway is not enough to raise the presumption. You have to find whether those fences are prima facie to be taken to have been made in reference to the highway, and, therefore to be the boundaries of the highway, and, further, I think that having regard to the judgment of Vaughan Williams L.J., if you find a fence by the side of the highway, then prima facie that fence is the boundary of the highway, unless you can find some reason for supposing that it was put up for a different purpose.’”
Goff J. commented at p. 13:-
“This passage I confess puzzled me at first and appeared indeed to be self-contradictory, but carefully analysed I think its meaning is succinct and clear. Warrington J. said ‘You have to find whether those fences are prima facie to be taken to have been made in reference to the highway,’ because that preliminary finding may be rebutted by evidence of acts of ownership inconsistent with that conclusion, but then he says further ‘prima facie that fence is the boundary of the highway unless you can find some reason for supposing that it was put up for a different purpose.’”
102. Goff J. distinguished earlier authorities on their specific facts, finding for instance that in the case of Belmore v. Kent County Council [1901] 1 Ch 873:-
“…there were clear acts of ownership inconsistent with the public right to rebut the presumption, notably making access ways raised some three or four feet above the level of the ground.” (p. 13)
103. The court noted that, in the absence of a satisfactory explanation as to why the hedge was placed where it was, it was constrained to adopt the prima facie presumption.
104. Goff J. in Beynon noted that: –
“…although the plaintiff has failed to prove any acts of public right over the strip other than its edge, the plaintiff has clearly shown that part of the verge was included in the highway since the council widened the road on that side without paying compensation, and afterwards made up a footpath.” (p. 15)
In contrast with the facts in the instant case, in Beynon the defendant had conceded that part of the verge was a public highway and it was not possible to show any differentiation or boundary between that part and the portion that was not highway other than a notional line.
105. Goff J. emphasised that the “fence to fence presumption” has to be applied according to the facts as they are at the time of the action.
106. The appellants pray in aid Goff J.’s decision and further contend that Beynon is authority for the proposition that it is not necessary to show user by the public where the fence to fence presumption applies.
107. As is emphasised by Hale L.J. in Hale v. Norfolk County Council at p. 731:-
“…The presumption of dedication of all the land running between hedges or fences can only arise if there is reason to suppose that the hedge or fence was erected by reference to the highway: that is, to separate the land over which there was to be no public right of way from the land over which there was to be such a right. Where matters are lost in the mists of time, it must often be possible to draw such an inference from the layout on the ground. In a conventional road running between hedges or fences, even if the verges are of varying widths and shapes, this may well be the obvious conclusion. It is not surprising, therefore, that the cases regard this as the prima facie position. But that is not the same as elevating this preliminary factual question into a presumption of law”. (emphasis added)
108. It is in that context that one considers the dictum of Chadwick L.J. in the said case at para 32 which is relied on by the appellants:-
“Warrington and Goff JJ. [in Offin v. Rochford Rural District Council [1906] 1 Ch 342 and Attorney-General v. Beynon, respectively] were plainly correct, as it seems to me, to emphasise that the first question to be decided is whether the fence was erected (or the hedge established) in order to separate land enjoyed by the landowner from land over which the public exercised rights of way. In other words, did the landowner intend to fence against the highway? If that question is answered in the affirmative, then there is a presumption, which prevails unless rebutted by evidence to the contrary, that the land between the fence and the made-up or metalled surface of the highway has been dedicated to public use as highway and accepted by the public as such. It is unnecessary to prove an intention to dedicate; or to prove acceptance by actual user. Both dedication and acceptance will be inferred. And it follows that, where that question can be answered in the affirmative in relation to the fences or hedges on both sides of a made up or metalled surface used as a highway, there will be a presumption that the whole of the land between those fences or hedges has been dedicated to, and accepted for, highway use. That is the basis for the ‘hedge to hedge’ presumption.” (emphasis added)
109. In summary, where it is contended that a public right of way over land has arisen under the doctrine of dedication and acceptance at common law, it will be generally presumed that, where a fence or hedge has been erected by the landowner in order to separate the land enjoyed by him from the land over which the public are exercising rights of way, that the land between the hedge and the made up or metalled surface of the road has been dedicated to public use as a highway and accepted by the public as such. It is a rebuttable presumption. Hence the burden of proof shifts to the respondent to demonstrate that dedication and acceptance of the disputed grass verge could not be inferred in all the circumstances of this case.
Acceptance by the public
110. The respondent having accepted that the hedge could be rebuttably presumed to have been intended to mark the boundary between his private lands and the public way (the so-called “preliminary question”), the rebuttable presumption arose that all the ground lying between the hedge and the metalled track formed part of the public right of way. I am satisfied that this was clearly rebutted by the respondent where no acceptance by the public of the disputed grass verge was shown, no probative evidence of any public user of the said part was found by the trial judge to have been shown and public expenditure was shown to have been minimal at best such as cutting back briars projecting from the disputed grass verge over or onto the metalled road.
111. Bland opus cit. at para. 2-25 contextualises the historic importance of actual acceptance as a prerequisite to the coming into existence of a public right of way thus:-
“This requirement of acceptance by the public dates back to when the members of the parish were prima facie liable to repair highways. The doctrine of dedication and acceptance requires this liability to be accepted. Therefore, dedication of a highway does not crystallise in the creation of a right until the way is exercised. Without acceptance, an intention to dedication is only an intention.”
Here, as the trial judge concluded on his assessment of the evidence, acceptance by the public by user of the disputed grass margin as a highway was not demonstrated or established by the appellants. Insofar as it was open to the trial judge to infer acceptance by the public from the evidence of user by the public of the dedicated land, as stated by Chadwick L.J. in the English Court of Appeal at para. 20 in Hale v. Norfolk County Council and by this court in Walker v. Leonach [2018] IECA 132 at para. 86, the basis for such an inference was not established by the appellants either.
Public Roads
112. A public road must first be a public right of way. The functions and duties of the road authority become operative when it adopts a public right of way as a public road whereupon the way enjoys a co-existent statutory status.
113. The statutory architecture governing public roads includes the Roads Acts 1993 and 1998. The implications flowing from the doctrine of dedication and acceptance are succinctly stated by Bland at para. 2-27 as follows:-
“As a way cannot be taken in charge pursuant to s. 11 of the Roads Act 1993 unless it is first a public right of way, the taking in charge of a road cannot amount to acceptance on behalf of the public.”
As discussed above, on the trial judge’s assessment of the evidence, dedication and acceptance of the disputed grass verge as a public right of way was not established by the appellants in the High Court to the relevant standard of proof. Hence, arguments that the trial judge failed to take into account the evidence of Mr. James Cleary and other witnesses as to their understanding of the practice of the road authority of generally taking in charge the area between hedges are misplaced unless this crucial element of acceptance by the public was established, and I am satisfied that it was not.
114. Having failed to establish dedication and acceptance, for the disputed grass verge to be otherwise shown to be in charge of the road authority the appellants had to establish that it had been originally constructed as a public road. In my view, the appellants likewise failed to establish this in the High Court to the relevant standard of proof.
Rebuttal of presumption that disputed grass verge formed part of public right of way
115. In the appellants’ written submissions, it was contended that the evidence on the basis of which the trial judge held that the hedge to hedge presumption was rebutted was not capable as a matter of law of rebutting that presumption. In particular, the appellants submitted that:
(1) the trial judge erred in finding that pedestrians were not likely to use the grass verges in circumstances where the narrow width of the tarmacadam surface would render it necessary to use the grass verges for safety purposes when a motor vehicle was approaching;
(2) there was conflict in the trial judge’s finding that the grass verge was not capable of being used by pedestrians because it was overgrown and the finding that the respondent and his family carried out sufficient works on the grass verge to rebut the hedge to hedge presumption;
(3) the evidence of the carrying out by the respondent of acts of maintenance of the grass verge and/or hedge is not capable as a matter of law of rebutting the hedge to hedge presumption;
(4) the acts of maintenance by the Council, as road authority, tended to establish that the road had been taken in charge and were not capable of being rebutted by the “minimal actions” of maintenance by the respondent and his family;
(5) the assertion of ownership of the grass verge by the respondent in terms of putting down kerbing in the area of the grass verge does not amount to evidence capable of rebutting the hedge to hedge presumption as ownership is not mutually inconsistent with the grass verge having been taken in charge; and,
(6) the trial judge failed to take into account the evidence of Mr. James Cleary; the evidence of Council witnesses in relation to the practice of taking in charge the area between hedges; the evidence of maintenance by the Council including the evidence of Maureen Tracey; the necessity of taking the grass verge in charge in order to cater for the safety needs of road users; the fact that the respondent did not object to the installation of services and cables; and, the road opening licence granted to the appellants.
116. In the absence of evidence of an express dedication which clearly defined the width of the public right of way at this locus it was necessary for the court to make a determination as to its lateral extent. In the instant case, the net question was whether the respondent had rebutted the hedge to hedge presumption in relation to the disputed portion of the verge such that the trial judge was entitled to infer that it had never formed part of the public right of way. The boundary features on either side are hedges with a width of 4.6 metres from centre of hedge to centre of hedge. Between the hedges a metalled surface or via trita passes with the metalled blacktop surface measuring in width 3.5 metres as to its lateral extent. There is no dispute but that the public right of way extends to cover the area of the metal blacktop surface.
117. The question as to whether the width of the public right of way extends laterally across the entirety of the space hedge to hedge depends to a significant extent on the facts including a consideration of the nature of the area in which the road passes, the width of the margins, the regularity of the line of the hedges and the level of the lands adjoining the road.
118. No witness was called to attest to ever having used the disputed grass verge as a public right of way. The trial judge did not accept evidence called on behalf of the appellants on the issue of user, preferring the testimony of the respondent and his witnesses on the point. As I shall explain, it is not open to this court to interfere with that assessment of the evidence by the trial judge.
119. The acts of dedication and the acts of acceptance as pleaded in the defence and counterclaim are considered below.
User by the public
120. In this case, the issue arises as to the nature and quality of the evidence before the High Court of the actual user by the public at any time of the disputed grass verge. As was noted by Lopes L.J. and Kay L.J. in Harrison v. Duke of Rutland [1893] 1 QB 142, a highway is only used as a highway when it is used for passage. It is necessary to evaluate what evidence, if any, was before the court that the disputed grass verge was ever used by the public for such purpose.
121. The right of the public to go, pass and re-pass arising from an implied dedication of a public right of way is generally established by evidence of actual exercise by the public of the said right. Hence conventionally it is of importance that witnesses are called to confirm the user of the way for the purpose of passage for without it there is no evidence of acceptance by the public of the way which is a fundamental constituent element and prerequisite to establishing a public right of way by inferred dedication.
122. There was evidence from the respondent and his witnesses including Mr. Nolan which the trial judge accepted that pedestrians neither did nor could use the disputed grass verge as a public way. There was cogent evidence accepted by the trial judge that pedestrians at this location used the tarmacadam or metalled surface to traverse Seamount Road and not the disputed grass verge principally because the latter was impassable due to being uneven and blocked by the overgrown hedge maintained by the respondent. It is evident that the trial judge found the appellants’ witnesses unconvincing on this key issue.
123. Until the appellants’ development was undertaken, this part of Seamount Road served three dwellings; that of the appellant Tracey family, the respondent Condron family and the Nolan family.
124. An exceptional factor in this case is that the appellants failed to call a single witness to testify to having ever personally exercised a right of passage over the disputed green verge. No witness testified to having used the disputed grass verge “for safety purposes when a motor vehicle was approaching”. Hypothesis is not a substitute for evidence.
125. It is clear that the evidence of Martin Treacy claiming the verge was used by pedestrians was not accepted by the trial judge. Neither Martin Treacy nor Mrs. Maureen Treacy gave evidence that they themselves had ever used the disputed grass verge as a pedestrian way. Crucially, other than Martin Treacy, not a single witness was called to support the assertion that children would walk upon the disputed verge “if there was a car coming”. Beyond the scenario posited by Mr Treacy there was simply no evidence to support a contention that the disputed grass verge was ever used as a pedestrian way. Whilst the appellants were critical of the trial judge for failing to have regard to “the reasonable likelihood that the verge must have been used of necessity” as an area ancillary to the tarmacadam roadway, it was significant that no witness testified to engaging in such user. “Reasonable likelihood” is in the realm of conjecture in light of the fact that no witness was called to testify ever having done so. The trial judge had the opportunity to hear and observe the witnesses at first-hand and could during this lengthy trial evaluate their objectivity and the quality of their recollection (insofar as their evidence was based on recollection, rather than speculation). There is no basis to disturb his finding that the disputed grass verge was not used by pedestrians as a public right of way.
126. The evidence of Paul Nolan who had resided in the dwelling opposite the respondent was that pedestrian user occurred only on the blacktop surface and not on the grass verge. His evidence of the uneven state of the verge was not disputed. His evidence regarding the hedge and the untrimmed state in which it was kept whereby it projected out from the hedgerow across the disputed green verge in a manner that would significantly impede pedestrian access supported non-user of the grass verge by pedestrians and was also not disputed.
127. The trial judge made a clear finding at para. 95 that he did not accept that the grass verge was used as some sort of public pedestrian footway over many years as a matter of right or otherwise by persons using Seamount Road including schoolchildren taking a shortcut – contrary to what the appellants’ witnesses had contended.
Cul de sac
128. Keane observes in The Law of Local Government in the Republic of Ireland (1st ed., Incorporated Law Society of Ireland, 1982):-
“One of the elements which has to be taken into account in determining whether there was an intention of dedication is the nature of the locus in quo. Thus, an inference of dedication is more difficult to draw in the case of a cul de sac, since a highway is normally expected to lead to a particular point. As a result it is difficult to establish that a cul de sac is a public road by evidence of user alone, without proof that public money has been spent on it.” (p. 67)
However, in this case, in circumstances where it was accepted by both sides that the metalled part of the way to the extent of 3.5 metres is in charge of the roads authority, decisions in relation to cul de sacs in general are not of any material relevance or assistance in determining any of the germane issues in this appeal.
Acceptance on behalf of the public
129. As the Supreme Court has made clear in Connell v. Porter and Walsh v. Sligo County Council, the expenditure of public money on the repair or maintenance of a road, coupled with evidence of user, is strong evidence from which dedication may be inferred. However, expenditure of public money alone does not establish dedication; user and acceptance by the public must also be demonstrated.
130. The local highway authority, as the representative of the public, is competent to accept an express dedication by written agreement with a landowner though no such state of affairs arises in the instant case. Acceptance is generally evidenced by the assumption of a positive obligation to maintain the highway since acceptance imports such an obligation and the expenditure of public funds on the way generally connotes acceptance by or on behalf of the public.
131. Where the way has been maintained by the road authority the physical extent of the way so maintained is of central importance.
132. With regard to maintenance of the disputed strip there were material inconsistencies as between the appellants’ evidence given by Maureen Treacy and Martin Treacy, on the one hand, and the retired Mr. Tommy McCormack, on the other, regarding the nature, extent and frequency of maintenance work being carried out to the disputed grass verge or the hedge. The trial judge noted at para. 86 that Mr. McCormack’s evidence of trimming of briars was confined to briars “protruding out into the road”.
133. It can reasonably be inferred from the judgment of the trial judge that weight was not attached to the evidence of Maureen Tracey to the effect that the Council had maintained the hedges and grass verges. In particular, her evidence was at variance with that of Tommy McCormack and no witness was called from the Council to resolve the differences in view as between the appellants’ own witnesses.
134. Since there was a clear conflict between the evidence of Paul Nolan, the respondent and his son on the one hand and the appellants’ witnesses on the other, the necessary inference to be drawn from his conclusions is that the trial judge considered the respondent and his witnesses to have advanced credible evidence which he preferred over the testimony from the appellants on this specific and critical issue. In those circumstances bearing in mind the applicable standard of review, it is not open to this court to interfere with his findings and conclusions in that regard.
Acts of ownership
135. Walsh v. Sligo County Council is authority (para. 74) for the proposition that it is of relevance whether the landowner had taken any step to disabuse the public of a belief that they enjoyed a right to use the way.
136. The public right of way is created under common law by the proof, by either actual evidence or inference, of its dedication by the owner of the soil and acceptance of same by the public. The owner of the soil retains all of the rights of ownership subject to the public right of way. The owner of land subject to a public right of way has no obligation to repair and maintain it, or to keep it free and safe for users at common law.
137. The placing of kerbing by the respondent was a single factor which when taken with the totality of the other factors and evidence available to the trial judge, including the mowing of the grass occasionally, tended towards rebutting the hedge to hedge presumption even though if taken alone it might not be dispositive of the issue. It was one of a number of indicia and acts of ownership that is consistent with a sustained position of asserting ownership over the disputed grass verge throughout a protracted period of time and represented a further act of ownership inconsistent with the existence of a public right of way over the disputed grass verge that had been taken in charge by the roads authority.
138. The acts of maintenance of the respondent were consistent with active acts of ownership of the disputed grass verge. Taken with all the other factors, including the complete absence of any credible evidence of the public ever exercising public rights of way over the disputed verge, such acts served as a factor in rebutting the hedge to hedge presumption. The limited maintenance of the grass verge by the respondent and otherwise his acts in relation to maintaining same in a state of exuberant overgrowth including causing the hedges and hedgerow to grow out extensively over the disputed grass verge so as to preclude the practical possibility of members of the public traversing the ground in question and the absence of any evidence of objection to this either by any member of the public or the road authority, Fingal County Council, combined to rebut the hedge to hedge presumption and were inconsistent with the existence of a public right of way over the disputed grass verge. There was ample evidence on which the trial judge was entitled to conclude that the hedge to hedge presumption had been rebutted by the respondent.
139. The works which the trial judge found on the evidence before him had been carried out by the respondent on the disputed grass verge were not rendered by the respondent for the purposes of making the said verge traversable by the public as part of a public right of way. Hence there was no conflict in the trial judge’s findings in that regard. His conclusion that the said works went towards rebutting the hedge to hedge presumption was correct.
140. The fact that the respondent had telephoned an employee of Fingal County Council with regard to issues concerning ingress of water from the grass verge onto his property is not probative of a claim that a public right of way existed over the disputed grass verge and that same had been taken in charge by the roads authority.
141. The presence of static installations in relation to utilities such as telephone cables, mains and other conduits may in a specific case be indicative of the extent of dedication but overall on the evidence before the trial judge in this case were not probative of user of the area in question for the purposes of passage by the public as a public right of way.
Excerpt from schedule of roads taken in charge
142. Sean McGrath, a retired senior executive engineer with Fingal County Council, gave evidence at the hearing. By letter of 4 September 2015, addressed to a solicitor who acted for the respondent, he stated: –
“…I have researched the question of the taking in charge of Seamount Road. I have been provided with an extract from a schedule of roads deemed to have been taken in charge. The schedule includes Seamount Road, listing its length as 680 linear yards and its average width as 15 feet. I attach a copy of this schedule for your information”.
The schedule does not include any map of Seamount Road.
143. It is noteworthy that Mr. McGrath did not work in the Roads Department of Fingal County Council. He does not, either in the said letter or in his evidence, identify definitively the provenance of the “extract from a schedule” and it is noteworthy that the roads were “deemed” to have been taken in charge. No witness was called from the Roads Department of Fingal County Council at the hearing of this action.
144. The excerpt annexed is unclear as to the date of its actual creation. It is headed in the handwriting of an unknown individual “Roads in Charge – Excerpt From 1930 + 1952 Road Schedules”. The entry no. 133 states: –
“‘Seamount Road’ from the three roads next north of Broomfield House on the main Malahide – Hazelbrook to Portmarnock Bridge east road east for 680 yards. (cul de sac)”
Its length is given as 680 yards long and 15 feet in width which equates to 4.5 metres.
145. In the instant case it was generally accepted by the parties that the copy of the roads schedule was evidence of the existence of a public road at Seamount Road.
146. The specific detail as to width in the roads schedule is supportive of the respondent’s position and no sufficient evidence to rebut the width of 15 feet (4.5 metres) in the locus in dispute was advanced to the court.
147. With regard to the evidential value of the excerpt from the schedule of roads taken in charge, the trial judge dealt comprehensively with the relevant statutory provisions and in particular the Local Government Act 1925 and the relevant articles of the Public Bodies Order 1946 (S.I. No. 273 of 1946). Whilst the court noted that the extract produced “has some similarities to the road schedule from RO1 prescribed under Article 86 of the Public Bodies Order 1946”, the court noted at para. 41 of the primary judgment: –
“The maps prepared and records kept, if any, under the various articles of the Regulation concerning the identification of the road and the keeping of accounts in respect of its repair and maintenance as a road taken in charge were not produced in evidence. In fact there is no evidence that the maps which ought to have been prepared and updated by the road authority were ever compiled and updated.”
In the circumstances, the trial judge did attach appropriate weight to the schedule of public roads albeit that it was lacking in key information and in particular a map.
The “certificate” of 7 August 2003
148. As the evidence of Mrs. Treacy made clear, on 31 July 2003, the third named appellant (now deceased) wrote a letter to Kathleen Power of the roads department at Fingal County Council:-
“I would like to make an application for the taking in charge of 9 metre wide section of roadway at the upper end of Seamount Road…from the entrance to Knockdara Estate to the entrance of Seamount House as outlined on the attached map.”
149. The parties are in agreement that the actual width of the roadway at the disputed area is 7.5 metres from the centre from the hedge on one side of the road to the centre of the hedge on the far side of the road. Hence in effect the request by Mr. Treacy if acceded to would have resulted in the roads authority taking in charge part of the curtilage and private gardens lying inside the boundary hedges on the northern and southern sides of Seamount Road at the relevant location. It appears that the addressee, Ms. Power, as of July 2003 worked in the Roads Department of Fingal County Council as a member of the administrative staff. Ms. Power was not called as a witness at the hearing.
150. The letter in response to that request was dated 7 August 2003 and was heavily relied upon by the appellants in support of their contention that the disputed grass margin was in the charge of the roads authority:-
“I wish to refer to your letter dated 31st July 2003 and to state that the roads, footpaths, sewers, watermains and public lighting abutting Seamount Road are in charge of the County Council from the Hill, Malahide up to the entrance of Seamount House. Between Knockdara and the entrance to Seamount House the width of the road in charge is 7.5 m.”
151. This letter is signed “pp. Bridget Gilbert Senior Executive Officer”. Ms. Gilbert was not called at the hearing. The identity and status within the roads authority of the party on whose behalf and as agent she affixed her name to the letter per procurationem was not established in evidence.
152. As the trial judge noted, Mr. James Cleary in his evidence “in effect rejected” that the purported measurement of the width of the area taken in charge at the relevant location was “an accurate measurement” (para. 7 of primary judgment). As the trial judge noted, “there was nothing to support it”. It was at fundamental variance with the excerpt from the roads schedule and with the reality on the ground and in the circumstances no evidential weight could be given to it.
153. I am satisfied that the trial judge was entitled to adopt the approach he did to the witnesses particularly in circumstances where the certificate of taking in charge from Fingal County Council (referred to in ground 12 of the notice of appeal in relation to the respondent’s credibility) was discredited by evidence before the High Court from Mr. Cleary who characterised it as “wrong” as regards measurements and no witness from the Roads Department of the Council gave evidence to address the key issues arising in relation to same at the trial.
2003 Planning Permission
154. It is noteworthy that Fingal County Council in its Notification of Decision to Refuse Permission of 24 March 2003 identified as its fourth reason: –
“The proposed development is to access onto Seamount Road. The section of this road in the vicinity of the proposed development is substandard in a width (approximately 3.5 metres) and footpath provision. The increase of traffic generated by an additional 82 dwelling units and crèche would give rise to significant traffic congestion at this location resulting in the creation of a traffic hazard.”
155. The inadequacy of the roadway in the view of Fingal County Council is independently corroborated by a document from its own Roads Department which formed an integral part of that decision and which stated: –
“The proposed development has access onto Seamount Road. A section of this access road in the vicinity of the proposed development is substandard in width (approximately 3.5m) footpath provision. In the absence of a satisfactory proposal to upgrade this section of road to a minimum width of 5.5m and provide a 1.5 footpath, Roads Dept. recommend refusal as the increase in traffic generated by an additional 82 houses and crèche would give rise to significant traffic congestion at this location resulting in the creation of a traffic hazard.”
This is signed by Ms. Helen Cuddy on 28 February 2003 and endorsed by Brendan Colgan on the same date – both of the Roads Department of Fingal County Council. The 2003 “certificate” was discredited and could not be relied on to contradict the clear findings and conclusions of the roads authority.
156. This is the only direct document emanating from the Roads Department setting out its actual understanding of the status, dimensions and width of the public way with access onto the development. In circumstances where a witness who had been in the employment of Fingal County Council repudiated and rejected the validity of the purported certificate dated 7 August 2003, it offers significant material evidence that it was the understanding of the Roads Department of Fingal County Council on 29 January 2003 that the width of the way was 3.5 metres. No evidence was adduced by the appellants and no witness was called from the Roads Department at trial to dispute or contradict that statement or to identify any development or occurrence between January 2003 and August 2003 that would have resulted in an accretion to the lateral dimension of the highway, public way, roadway or area taken in charge.
2010 Planning permission condition
157. It is noteworthy that in the grant of planning permission by An Bord Pleanála on 14 May 2010 (Planning Register Reference No. F09A/0015) Condition 3 provides: –
“Prior to the commencement of development, the developer shall submit to, and agree in writing with, the planning authority, proposals for traffic calming measures, parking control measures and pedestrian crossings along Seamount Road as recommended in the ‘Stage 1 Road Safety Audit’ submitted to the planning authority on the 11th day of September, 2009. No dwelling unit shall be occupied prior to the construction and commissioning of these and other proposed road improvement works along Seamount Road, as confirmed in writing by the planning authority.
Reason: In the interest of clarity, amenity and traffic and pedestrian safety.”
158. Whereas the road schedule demonstrates that the average width of 15 feet was taken in charge and same is greater than the portion of the blacktop surface in the vicinity of the disputed grass verge, 15 feet would have been insufficient to permit the appellants to construct a road of the width envisaged by the terms of their grant of planning permission, as revised.
159. The evidence before the High Court, however, was that as of the hearing date the development had been substantially completed and the units in question were occupied. That is rather surprising given the clear terms of the condition set out above.
Evidence of witnesses
160. The evidence of the former Council employee who had never worked in the Roads Department of the Council as to his belief that the practice of the road authority is to take in charge the area “between the hedges” could not be probative of the appellants’ contention that the disputed grass verge at the locus was subject to a public right of way and had been taken in charge of the local authority in circumstances where the hedge to hedge measurement was fundamentally inconsistent with the excerpt from a roads schedule which stated that a width of 15 feet (4.6 metres) had been taken in charge. No witness from the Roads Department was called to address this issue.
161. In that regard the observation of Bland in Highways at para. 2-27 bears repetition:-
“As a way cannot be taken in charge pursuant to s. 11 of the Roads Act 1993 unless it is first a public right of way, the taking in charge of a road cannot amount to acceptance on behalf of the public.”
162. The fundamental anterior requirement of proving that, prior to the purported taking in charge by the road authority of Seamount Road, the disputed grass verge was subject to a public right of way created at common law by dedication and acceptance which, as the Supreme Court in Walsh v. Sligo County Council made clear, is not a presumption of law but rather a question of fact to be decided by the trial judge in the light of all the evidence, was never established by the appellants in the instant case. That fact wholly undermines any entitlement on the part of the appellants to have the court attach any probative value to either the 7 August 2003 “certificate”, the excerpt from the schedule of roads taken in charge or any other official document emanating from the local /roads authority including the road opening licence.
Mr. Cleary
163. The difficulty with Mr. Cleary’s evidence is that he was a retired senior engineer with the Capital Investments Department of the Council at the time of the hearing and not in the Roads Department. Hence there was not a single witness giving evidence from the Roads Department of Fingal County Council. The court clearly (and correctly) found at para. 6 that, “Mr. Cleary was unable to assist the court on the taking in charge of the relevant portion of Seamount Road” .
164. Mr. Cleary had emphasised, as the trial judge noted at para. 63:-
“…in the course of his evidence that there were many people in the Roads Department of the County Council who would know about the process for taking roads in charge, road maintenance, construction and planning, but that he worked in the Capital Projects Department within the Council and would therefore have no function in the above aspects of the Council’s work and responsibility regarding roads. He stated he never worked in the taking in charge section of the Council and therefore could not assist the court on that matter.”
165. Whilst Mr. Cleary’s opinion was to the effect that the area between the hedges was taken in charge, his opinion on this issue had little or no evidential value and the other evidence adduced did not support that opinion and, in particular, the evidence of the respondent and his family, of Mr. McCormack and of Mr. Nolan contradicted it.
166. It follows from the above that the appellants are not entitled to exercise rights on foot of the road opening licence which was issued to them by Fingal County Council in April 2016 in or over any part of the disputed grass verge and such acts and works as have been carried out thereon constitute trespass.
The pleadings
167. The respondent’s statement of claim was delivered on 16 June 2016.
168. The defence delivered on behalf of the appellants traversed the respondent’s claims in all material respects. Trespass on the respondent’s lands was denied at para. 13:-
“…The [appellants] deny that the area where the works were carried out by the [appellants] …was on the [respondent’s] property and/or that same resulted in trespass onto the [respondent’s] property.”
It was pleaded that the respondent was estopped from claiming ownership to the lands arising from objections made to a planning application of the appellants in the year 2003:-
“…there was no reference in the [respondent’s] objection to claiming ownership of the lands the subject matter of the proceedings herein. As a consequence of the foregoing the [respondent] is estopped from now claiming ownership to the lands.” (para. 16)
169. The counterclaim placed fundamental reliance on the grant of planning permission made by An Bord Pleanála on 14 May 2010 as entitling the carrying out of works including the works effected on the disputed strip of ground: –
“4. The [appellants] obtained planning permission to carry out works at their lands at or about Seamount House on the 7th October 2009. An appeal to same was lodged on the 27th October 2009 and a decision to grant permission was made by An Bord Pleanála on the 14th May, 2010 and the works commenced on the 2nd June, 2014.”
It was pleaded that the works were significantly advanced, being building works in respect of 137 dwelling units on the Seamount site. Of relevance to the claim of a public right of way are the following declaratory reliefs sought:-
“(1) A declaration that the [appellants] are entitled to proceed with their development in accordance with the planning permission granted;
(2) An injunction preventing the [respondent], his servants or agents interfering with the [appellants’] right and ability to carry out the works in accordance with the planning permission”
170. It will be recalled that the grant of planning permission was explicitly subject to s. 34(13) of the Planning and Development Act 2000 which provides:-
“(13) A person shall not be entitled solely by reason of a permission under this section to carry out any development.”
Contrary to the appellants’ assertions, neither the grant of planning permission nor the road opening licence constituted evidence that the disputed grass verge was subject to a public right of way. Neither did they confer any entitlement on the appellants to interfere with the respondent’s private property.
Taking in charge pursuant to statute
171. Where a highway is created pursuant to statutory powers no act of the landowner or user by the public is needed to complete its creation and that has been established at least since the decision in R. v. Inhabitants of Leake (1833) 5 B. & Ad. 469. Furthermore, where a statute does no more than authorise the setting out of a public road by a roads authority, no public right of way comes into existence (absent adoption by user) until the road has been set out in substantial conformity with the statutory requirements per Cubitt v. Lady Caroline Maxse (1872-73) L.R. 8 C.P. 704. No such taking in charge was proven in this case and the certificate tendered in support of such a proposition was, on the facts of this case, correctly rejected by the trial judge as evidencing same.
Lack of candour
172. The appellants argued that the trial judge erred in law in failing to take into account the lack of credibility of the respondent’s evidence, particularly in light of the failure to disclose certain matters at the ex parte application for injunctive relief including a letter from Sean McGrath of 4 September 2015 enclosing the excerpt from the 1952 roads schedule, an email from James Cleary dated 22 October 2015 and the “certificate” of 7 August 2003.
173. It would have been preferable had the respondent when moving ex parte an application for interim interlocutory relief disclosed the existence of the letter from the Roads Department dated 7 August 2003 as it was material to the matters in issue. However, I am not satisfied that it is relevant in determining any issue in this aspect of the appeal. Such omission could not be determinative in and of itself as to the existence or not of a public right of way over the disputed grass verge. It may however have a relevance in regard to the issue of costs, particularly the costs of the said ex parte application.
174. The evidence showed that on the date in question, being 19 April 2016, the disputed grass verge and existing hedge were removed and a concrete pavement installed in its place. The circumstances are relevant including that the respondent was a person of limited education. The exigencies confronting the respondent householder which precipitated the application for interim injunctive relief goes some way to explaining the oversight. The omission appears more consistent with oversight than any more sinister motive.
Extinguishment
175. The issue of extinguishment was belatedly raised in particular in the written submissions of the appellants advanced before this court. However, the issue of extinguishment of the right of way is not engaged in this case. It was not raised or argued in the High Court and does not assist the appellants having regard to the specific circumstances and facts of this case and having regard to all of the evidence adduced at the trial.
176. Once the respondent was in a position to rebut the hedge to hedge presumption that there had been a dedication of the entire width from centre hedge to centre hedge as a public way and, further, in the absence of probative evidence of the acceptance of the disputed portion of grass verge by acts of user thereon by members of the public consistent with an imputed dedication, the issue of extinguishment did not arise.
177. Further, the excerpt from the road schedule does not support the taking in charge of an area from hedge to hedge and indeed is inconsistent therewith. Therefore, a burden of proof that a public right of way had been extinguished over a portion of the disputed grass verge did not arise in the instant case.
Conclusions
178. This court is bound by the findings of fact made by the trial judge when they are supported by credible evidence. There was ample cogent evidence before the trial judge, as outlined above, which entitled him to find on the facts that the respondent had rebutted the hedge to hedge presumption.
179. The trial judge had the opportunity over eleven days of hearing to hear and consider the various witnesses and form his own views as to their credibility, objectivity and soundness of recollection. This court necessarily proceeds on the basis that it did not enjoy the opportunity of seeing and hearing the witnesses as did the trial judge who heard the substance of the evidence at great length, and could observe the demeanour of the witnesses. The trial judge’s preference of the respondent’s witnesses on the key issues, including the rebuttal of the hedge to hedge presumption, the non-user by the public of the disputed grass verge and the limited nature of the maintenance effected by the Council at the locus in quo and the weight which he attached to recollections regarding, in particular, the cutting of grass, the cutting of briars and bushes and the trimming of hedges ought not be interfered with in circumstances where his judgment engaged with the key elements of the case as advanced by both sides and provides reasoned conclusions whereby he preferred the respondent and his witnesses’ evidence in relation to the central issues.
180. With regard to the aspects of the evidence not rehearsed in the High Court judgment which, it is contended, ought to have been taken into account as supporting the appellants’ contention that a right of way did exist over the disputed grass verge or which tended to support a view that the grass verge had been taken in charge by the roads authority, the findings of primary fact were made by the trial judge based on oral evidence. A careful evaluation was made by the trial judge and he clearly preferred the evidence of the witnesses, lay and expert, called on behalf of the respondent. That is implicit from the judgment in its conclusions. The trial judge was entitled as the primary arbiter of fact in the case to carry out that evaluation. He disregarded evidence of the unhappy state of relations between the Treacy family and the Condron family and sundry issues that had arisen between them observing “if relevant at all they might be said to impinge on the credibility of the various witnesses but I do not consider those issues to be central to my determination.” It is evident from para. 58 of the judgment that he accepted in full the evidence of the respondent:-
“…I do not accept the proposition that his evidence is untruthful or otherwise tailored to procure recognition of such rights by the court.”
181. It is a significant and unusual fact that no witness was called on behalf of the appellants to give evidence of having ever walked or passed and repassed along the disputed grass verge for the purposes of using it as a footpath or way. Direct evidence of actual exercise of rights and user by any witness of the disputed portion of ground as a footpath or as part of the public roadway at any time was not adduced. That omission, when taken with other evidence, had the result that the imputed dedication of the disputed grass verge as part of a public right of way created at common law was not proven and the fundamental constituent element of acceptance by actual user by members of the public as a right of way was not proven in evidence.
182. The fact that the hedge remained in its natural state and in such a manner that briars extended across the disputed portion of ground rendering it impassable together with evidence regarding the state of the verge were clearly relevant considerations given the duration during which the state of affairs obtained. Even leaving aside the view expressed by consultants in the Road Safety Audit Report, there was ample evidence on foot of which the trial judge was entitled to conclude that the presumption that the disputed grass verge ever formed part of the public road had been rebutted.
183. The trial judge was, on the evidence, entitled to reach a conclusion that it was improbable or unlikely that pedestrians traversing Seamount Road walked on the grass margin or verge and in particular the disputed grass verge as opposed to the tarmacadamed surface. That was particularly so given that that property was located at the end of a cul de sac. There was no direct evidence by any witness that they had occasion to use the disputed grass verge of necessity in circumstances were the tarmacadamed metaled carriageway was not available to them due to vehicular activity at that point on the roadway as the appellants had surmised.
184. A “taking in charge” process could not have invested the disputed grass verge with the status of a public right of way in the absence of, at the very least, an imputed dedication and public acceptance of same by user being established as of the date of the taking in charge.
185. It was contended by the appellants that the trial judge should have given weight to “the fact that taking in charge the area between the hedges is necessary to ensure that the needs of road users are catered for, including their safety needs, which the road authority has a statutory obligation to cater for pursuant to s. 13(5) of the Roads Act 1993.” However, the road authority is not a party to these proceedings and the appellants do not have any enforcement functions as agent for and on behalf of the road authority. The statutory obligations of Fingal County Council are not probative as to whether the disputed grass verge is subject to a public right of way and had been taken in charge as such. Any such obligations are subject to the property rights of the respondent. Section 13 does not empower roads authorities to acquire or exercise control over private property.
186. The 2010 grant of planning permission made clear that it was subject to s. 34(13) of the Planning and Development Act 2000, as amended, and that no works by way of development in the construction of dwellings, let alone the installation of tenants or occupiers into same, ought to have taken place pending the issue of the entrance/access way being addressed. The appellants elected to disregard that proviso at their own risk.
187. The issuing of a road opening licence does not have evidential value as to the status of the area of ground in respect of which the licence is directed. Neither could it confer an entitlement on the grantee to trespass on the private property of the respondent. Issues in regard to any deficiency or invalidity in the licence are matters that rest between the appellants and Fingal County Council.
188. The trial judge heard the witnesses called on behalf of the appellants in regard to the cutting of the hedge or maintenance of the grass verge and I am satisfied that he was entitled to reach his conclusion that such activities, having regard to the totality of the evidence adduced in relation to same, were insufficient in themselves to demonstrate that the roads authority had taken the disputed grass verge in charge.
189. Furthermore, the very limited acts of maintenance contended for could not in and of themselves establish a public right of way over the disputed grass verge by the local authority in circumstances where an imputed dedication and acceptance of the disputed portion of the grass verge as a right of way was not established since there was an absence of probative evidence of user of the disputed grass verge as an integral portion or any part of the public highway at the locus in question.
190. The evidence of witnesses regarding maintenance which included clipping the hedge and verges particularly insofar as briars projected onto the 3.5 metre wide metalled surface spoke to the substantial impassibility of the area in question but did not establish the existence of a public right of way over the disputed ground arising by imputed dedication and acceptance by the public.
191. The trial judge was entitled to conclude at para. 93 on the evidence before him that the maintenance by the Council of the hedge or briars was merely sporadic and limited to trimming back elements protruding onto the tarmacadam surface. It is not correct to say that the trial judge failed to make a finding of fact as to the extent to which the Council had maintained the grass verge, as the appellants contended at ground 4 of their notice of appeal. It is implicit in the trial judge’s conclusions that weight was not attached to the evidence of Maureen Tracey with regard to the extent of maintenance carried out by the Council.
192. The aspects of the evidence where the trial judge determined that the respondent had exercised control over the grass verge coupled with his presumptive ownership of the soil to the centre of the highway were significant factors in this case. While some were of greater duration and significance, cumulatively they entitled the trial judge to conclude that the hedge to hedge presumption was rebutted by the respondent’s actions. Equally important is that there was no evidence beyond the bare assertion of Martin Tracey, whose evidence the trial judge did not accept, that anybody made use of the grass verge in question at any time as a public roadway or public path.
193. The installation of the kerbing and cobble lock was not determinative in and of itself of the issue. However, there was substantial other evidence in addition thereto and all the distinct evidential elements when combined operated in their totality to rebut the hedge to hedge presumption.
194. Engagement by the respondent with members of the roads authority regarding water ingress was not probative of the matter in issue and appears to have been precipitated by a wish to abate water run-off from the camber of the road surface into the curtilage of the respondent’s dwelling.
195. The fact that there was evidence that the respondent did not object to the installation of services and cables in the verge by various undertakers is not relevant. The creation or facilitating of wayleaves in connection with services or utilities underground or as fixtures at the surface do not in and of themselves establish that the surface at ground level is subject to a public right of way. Statutory and non-statutory wayleaves or easements are frequently availed of in connection with the installation of infrastructure and the running of conduits servicing multiple holdings.
196. The findings of the trial judge cannot reasonably be categorised as contradictory. Occasional maintenance of the grass verge is not inconsistent with the fact that its ongoing state was overgrown with hedge, briars and long grass such as to be incapable of use by the public.
197. Whilst the roads authority “certificate” of 7 August 2003 enjoyed a status of being prima facie evidence that the roadway in question constituted a public road pursuant to s. 11(5) of the Roads Act 1993, the “certificate” was substantially discredited by the witness Mr. Cleary and was acknowledged by him to be “wrong”. It was not verified or formally authenticated and the author of it was not called as a witness nor was any witness called from the Roads Department of Fingal County Council to prove its making. Its tenor was at variance with the evidence: it contradicted, without any explanation, the Roads Department report of February 2003. The trial judge accordingly was entitled to conclude that he could not safely rely on its terms in all the circumstances. Any issues arising in relation to the “certificate” fall to be resolved between the appellants and Fingal County Council.
198. With regard to the width of the road taken in charge it will be recalled that the roads authority was not a party to the proceedings. Of concern to the trial judge was whether the disputed grass verge was or was not subject to a public right of way and had been taken in charge by the roads authority. The determination of the trial judge that the width of the roadway taken in charge by the local authority at this point on Seamount Road only extended to 3.5 metres was consistent with the evidence and has no bearing on the nature and extent of Seamount Road that has otherwise been taken in charge by the roads authority. The determination does not bind the roads authority, this being an action in personam, neither does it bind any member of the public who was not a party to the proceedings. The judgment is specific to the matter at issue between the parties having due regard to the manner in which this case was pleaded including the counterclaim.
199. It is not, as the appellants deftly sought to frame their claim on appeal, that the respondent could only have succeeded at trial by establishing extinguishment of an existing public right of way over the disputed grass verge; by establishing that it ceased to be part of a public road. Rather there was no evidence that the disputed grass verge was ever actually part of or used as part of a public road in the first place. The issue of extinguishment of a public right of way has no relevance whatsoever to the instant case.
200. The presumption – insofar as the disputed grass verge is concerned – that the entire width between the hedges was subject to a public right of way and was part of the public highway and had been taken in charge was rebutted by the respondent. No witness came forth to testify that they had ever personally walked upon the disputed grass verge as a public way or footpath at any time. Any taking in charge by Fingal County Council or its predecessor could extend only to the subsisting public right of way or roadway. It follows that the appellants are not entitled to install a footpath which incorporated the disputed grass verge.
201. Accordingly, I would dismiss the appeal.
Costs of this appeal
202. As noted earlier, the issues in the cross-appeal pertaining to costs will be dealt with subsequent to the disposal of the appellants’ appeal in the first instance. As regards this appeal, in all the circumstances, the respondent having been “entirely successful” within the meaning of s. 169(1) of the Legal Services Regulations Act 2015 and having due regard to O. 99 (recast) of the Rules of the Superior Courts, it is appropriate that the appellants herein pay the costs of the respondent when ascertained. If either party wishes to contend for an alternative order with regards to costs of the within appeal, they should provide written submissions to the Office of the Court of Appeal and the other side within 28 days of delivery of this judgment, with the other side providing a written response within a further 28 days. Thereafter the matter will be dealt with concurrently with the respondent’s cross-appeal above referred to.
203. Collins and Pilkington JJ. concur with this judgment.
Result: Appeal dismissed
Udaras Eitliochta na hEireann & anor -v- Monks & anor
[2017] IEHC 440
High Court
Judgment by:
McGovern J.
JUDGMENT of Mr. Justice Brian J. McGovern delivered on the 7th day of July, 2017.
1. In these proceedings, the plaintiffs seek injunctions and other relief including a declaration that the second named defendant does not possess any estate, right, title or interest in a property comprised in Folio 2591R of the Register, Co. Dublin, known as “McCabe’s field”. The first named defendant has consented in writing to the making of final orders in favour of the plaintiffs in these proceedings and did not participate in the substantive hearing of the matter before the court. Throughout this judgment, Mr. Mark Monks (“the second named defendant”) shall be referred to as “the defendant”.
2. Specifically, the plaintiffs seek an injunction restraining the defendant, his servants or agents from preventing, interfering with, impeding, threatening and/or obstructing the plaintiffs and/or their servants or agents from engaging in the construction of the new Air Traffic Visual Control Tower at Dublin Airport and any ancillary or necessary works thereto. They also seek a declaration that the defendant is in breach of an order of the High Court (Kearns J.) made on 10th November, 2003, in the matter of Aer Rianta Cuideachta Phoiblí Theoranta v. Mark Monks [2000 No. 10996 P.] and the plaintiffs seek damages for trespass.
Factual Background
3. McCabe’s field comprises some 0.425 acres and is situate adjacent to the boundary of Dublin Airport and close to the Air Traffic Visual Control Tower and associated car park, the fire station and some hangers. McCabe’s field will play an important role in the development of the northern runway and more specifically in relation to the development of the new Air Traffic Visual Control Tower which will service that runway. Planning permission for the new control tower was granted on 12th February, 2010. At no time during the planning process did the defendant lodge any objection or make submissions to An Bord Pleanála or assert any ownership claim to McCabe’s field. On 12th December, 2016, BAM Civil Limited commenced preparatory works on McCabe’s field. Shortly thereafter, the defendant arrived at the field and a dispute took place concerning the ownership of the site. This is the central issue in these proceedings.
4. On 2nd March, 1928, the Minister for Industry and Commerce was registered as owner of the lands in Folio 2591R. On 14th February, 2007, Dublin Airport Authority was substituted as owner. The lands comprised in Folio 2591R incorporated McCabe’s field.
5. On 23rd December, 1992, Aer Rianta purchased four parcels of land from Mr. James Monks, the father of the defendant, in consideration of the sum of £340,000.00. The lands purchased were as follows:-
(i) 42.862 acres being part of the property comprised in Folio DN329 which was commonly used for grazing;
(ii) outhouses and buildings known as the “Twenty-two cowshed, the Feeding Shed and the Calf Shed” adjacent to Huntstown House which was part of Folio DN329;
(iii) 0.425 acres being part of Folio DN2591R (McCabe’s field); and,
(iv) a dwelling house being the property comprised in Folio DN15150 which was across the road from McCabe’s field (hereinafter referred to as “the dwelling house”).
6. Before Aer Rianta bought the land from Mr. James Monks, the parties to the agreement realised that there was a mistake in Folio 2591R in that McCabe’s field had been included in the folio since 1939. This was known to both Aer Rianta and Mr. James Monks in 1992. Prior to the sale of the lands Mr. James Monks had an established use of McCabe’s field and had intended applying to the land registry to be registered as full owner by long possession. However, when he decided to sell the lands to Aer Rianta, the parties to the sale agreed it was not necessary for McCabe’s field to be included in the deed of transfer as it was already registered in the name of the Minister for Industry and Commerce. Instead, the matter was addressed by way of a statutory declaration dated 23rd December, 1992, in which Mr. James Monks confirmed that he had agreed to sell McCabe’s field to Aer Rianta, that the purchase price had been paid, that he had withdrawn his application for registration in the land registry in respect of those lands and that he no longer had any interest whatsoever in McCabe’s field.
7. On the same day as the deed of transfer, Aer Rianta entered into a caretaker’s agreement with Mr. James Monks in respect of the lands including McCabe’s field and the agreement ran from 22nd December, 1992, for eighteen months up to 21st June, 1994. The agreement provided that Mr. James Monks would enter into possession “…solely as such caretaker…and not under any contract of tenancy”.
8. £34,000.00, being 10% of the purchase price, was placed on joint deposit on 24th December, 1992, in the joint names of the parties’ solicitors to be released when vacant possession of the lands was obtained by Aer Rianta.
9. On 13th May, 1994, Mr. James Monks sought to extend the agreement in respect of the parcels of land from 1st July, 1994. At this time, McCabe’s field was excluded from any new arrangement because of its location. The field is adjacent to the airfield entrance at the Dublin Airport and is close to the IAA Air Traffic Control Tower and associated car park, the fire station and some hangars all contained within the airport complex. Due to its proximity, the lands could be directly incorporated into Aer Rianta’s lands for use and it was envisaged that they would inevitably form part of the development and/or expansion of the airport and its facilities in a way in which the other lands would not.
10. On 13th May, 1994, Mr. Brian Vaughan, Corporate Property Manager, accompanied by Mr. Paul Pugh visited Mr. James Monks at his request. Mr. James Monks explained that he was still waiting to receive the sale monies from his solicitor and had been unable to make plans to buy a new house. He explained that he was interested in renting the house, outhouses and land at a fair rent from 1st July, 1994. It was agreed that McCabe’s field would be excluded from the new letting and that the old cottage known as McCabe’s Cottage would be vacated and Mr. James Monks would remove any item stored in the cottage so it could be knocked down. They agreed that Mr. James Monks could remain on the land until there was agreement on the rent. Contemporaneous notes of this meeting and subsequent meetings were made by Mr. Vaughan and he gave evidence to the court confirming the discussions that took place. On 28th July, 1994, Mr. Vaughan and Mr. Pugh again met with Mr. James Monks and discussed a figure of £4,500.00 for the lease of the dwelling house across the road from McCabe’s field and the other lands which were collectively referred to as the “Conacre lands”.
11. On 27th September, 1994, Mr. Noel Maher, a solicitor acting for Mr. James Monks said that he would advise his client to negotiate a rental of the dwelling house and the Conacre lands and to surrender vacant possession of McCabe’s Cottage. On 27th September, 1994, Mr. James Monks telephoned Mr. Vaughan informing him that he would vacate McCabe’s Cottage as soon as he got alternative storage space which he expected to arrange shortly. On 23rd November, 1994, Mr. Pugh and Mr. Vaughan visited Mr. James Monks and discussed a letting agreement with him whereby Aer Rianta would let him the Conacre lands and dwelling house from 1st July, 1994, for rents of £2,800.00 per annum and £1,200.00 per annum respectively. It seems the discussion eventually led to an agreement that there would be a letting in respect of the dwelling house and a licence agreement in respect of the Conacre lands. The lands did not include McCabe’s field. At that meeting, Mr. James Monks agreed that McCabe’s Cottage would be cleared shortly. The period of the rental agreement was to be from 1st July, 1994 to 30th June, 1995. Mr. Vaughan recorded a contemporaneous note of that meeting.
12. On 31st January, 1995, Mr. Vaughan sent Mr. James Monks a formal letting agreement in duplicate in respect of the dwelling house and a licence in duplicate in respect of the Conacre lands reflecting what had been orally discussed. A reminder letter was sent to Mr. James Monks on 15th May, 1995, but no letting agreement or licence were signed or returned.
13. A licence agreement dated 15th July, 1996, outlining the Conacre lands to be licensed to Mr. James Monks was left with Mrs. Ella Monks on 15th July, 1996. This agreement did not include McCabe’s field. The agreement was not returned.
14. Mr. James Monks died on 27th August, 1996.
15. In August 1997, Aer Rianta agreed to grant a licence to the defendant in respect of the Conacre lands from 1st August, 1997 to 30th June, 1998. These lands did not include McCabe’s field. There was a further agreement to let the dwelling house to Mrs. Monks. By that time there were arrears of rent and licence fees owing by the estate of Mr. James Monks in the sum of £12,202.31. Aer Rianta proposed that this be addressed by deduction from the deposit of £34,000.00 still being held on joint deposit with the solicitors for Aer Rianta and the late Mr. James Monks.
16. By letter dated 6th February, 1998, Messrs. Maher McAlinden Gallagher Solicitors wrote on behalf of the defendant referring to McCabe’s Cottage and McCabe’s field stating that the land was mistakenly transferred to Aer Rianta over fifty years previously and that their client had been in possession of the property since the 1950s. This claim came out of the blue and at a time when Aer Rianta was actively trying to address the arrears due on foot of the rental agreement for the house and the licence agreement for the Conacre lands.
17. On 27th February, 1998, Aer Rianta’s solicitors wrote to Messrs Maher McAlinden Gallagher informing them that they had purchased the lands from Mr. James Monks in 1992 and had paid full consideration for the lands including McCabe’s field. The letter pointed out that at the time of the sale it was acknowledged that Mr. James Monks had a claim in relation to McCabe’s field and that he had made an application to the land registry to register a possessory title but that, as part of the completion of the purchase of the lands, the dealing in relation to the application for possessory title was withdrawn from the land registry.
18. In the face of compelling evidence that Mr. James Monks had sold lands to Aer Rianta in 1992 and that these lands included McCabe’s field, the defendant continued to assert a claim on those lands. He maintained that he used the lands for storage purposes. He also claimed that his father had no legal title to sell the relevant lands. On 20th September, 1999, Mr. Vaughan wrote to the defendant formally calling upon him to remove his items from McCabe’s field. On 21st January, 2000, Mr. Vaughan wrote to the defendant referring to the oral Conacre agreement which expired on 31st December, 1999, informing him that Aer Rianta would not be renewing the agreement and that they intended to recover possession of those lands. The letter also stated that, while it was understood that he may have been using McCabe’s field to store property, there was no consent for that or any other use and he was asked to remove any property from both sites not later than 31st January, 2000.
19. Mr. Vaughan gave evidence that, on 24th January, 2000, the defendant telephoned him to say that he was contesting the original sale of the land by his father, Mr. James Monks, on the basis that he was not of sound mind at the time and that his solicitor should not have allowed him proceed with the sale. This was the first time such a suggestion was made. It was not supported by any medical evidence or by any of the defendant’s siblings who gave evidence.
20. Various forms of interaction took place between Aer Rianta and the defendant culminating in High Court proceedings bearing record number [2000 No. 10996 P.]. In those proceedings, Aer Rianta sought injunctions restraining the defendant from occupying the lands including McCabe’s field and ordering him to deliver up possession of those lands.
21. Over a very protracted period of time, the defendant in those proceedings failed to deliver a defence and the matter came before the High Court on a number of occasions by way of motions for judgment in default of defence which were adjourned from time to time. On 10th November, 2003, Kearns J. (as he then was) ordered that the defendant deliver up possession of three parcels of land including McCabe’s field and discharge arrears of rent in the sum of €37,729.00 to Aer Rianta.
22. Mr. Jerome Gallagher of Maher McAlinden Gallagher Solicitors, previously retained by the defendant, gave evidence that he informed the defendant of the outcome of those proceedings. He confirmed that he never received instructions to appeal or set aside the order of Kearns J. When invited to comment as to why this was so, he informed the court that there were no papers to enable him to do so. From his evidence, I inferred that he meant there was no documentary evidence to rebut Aer Rianta’s claim of ownership to McCabe’s field and the other lands.
23. I found Mr. Jerome Gallagher to be a credible witness. He attended court on foot of a subpoena and was clearly uncomfortable having to give evidence which was unfavourable to a former client. One of the features of this case is that the defendant was unable to produce any written documents establishing his claim to McCabe’s field or the other lands sold by his father.
24. On 20th February, 2004, the defendant entered into a settlement agreement with Aer Rianta in respect of the High Court proceedings in which an adjudication had been made against him. His mother, Mrs. Monks, was also a party to the settlement agreement because part of it concerned Circuit Court proceedings involving the dwelling house and lands at Folio 105077F of the Register, County of Dublin. Of relevance to these proceedings is para. 2 of the agreement. It reads as follows:-
“2. In High Court proceedings entitled Aer Rianta Cuideachta Phoiblí Theoranta and Mark Monks bearing record No. 2000/10996 P., the parties have agreed the following:-
(a) An Order for Possession of the Lands and Premises situate at Huntstown, Cloghran in the County of Dublin and comprised in Folios 105077F, 329 and 2591 of the Register, County of Dublin together with a stay on the said order until 31st December, 2003. (b) The sum of £35,000 (sic) (€44,440.83) together with interest thereon, currently being held in a joint account between BCM Hanby Wallace, Solicitors, and McAlinden & Gallagher, Solicitors to remain on deposit pending the delivery up of vacant possession of the lands and premises situate at Huntstown, Cloghran in the County of Dublin comprised in Folios 105077F, 329 and 2591 of the Register, County of Dublin.
(c) On the delivery of vacant possession of the lands hereinbefore referred to on or before 30th June, 2004, the sum of €23,000 to be paid out of the said account to Aer Rianta in full and final settlement of arrears due and owing, the balance to be released to the estate of the late James Monks, deceased.
(d) On the immediate delivery of vacant possession of the lands known as ‘McCabe’s field’ being part of the lands contained in Folio 2591 of the Register, County of Dublin and of the outbuildings and the yard adjacent to the Huntstown House, contained in Folio 329 of the Registrar (sic) Co. Dublin.
(e) The defendants agree to allow the plaintiff access to and inspection/survey facilities in relation to the lands, the subject matter of the proceedings herein, if necessary, during the period up to and including 30th June, 2004…”
The agreement was signed by the defendant and his mother.
25. Following the order of Kearns J. on 10th November, 2003, the defendant could not have been in any doubt that Aer Rianta was entitled to possession of McCabe’s field. The settlement agreement of 20th February, 2004, copper-fastened the legal position. It even referred to “McCabe’s field” quite specifically.
26. On 28th June, 2004, the defendant’s solicitor, now named McAlinden & Gallagher wrote to the solicitors for Aer Rianta referring to those proceedings in the following terms:-
“Dear Sirs
Further to our letter of 11th May last our client has contacted us with reference to the following matters (bearing in mind that there is a High Court Order).
All of the lands, the yard and ‘McCabe’s field’ are available to Aer Rianta to take over on 30th June. He asked us to obtain permission from Aer Rianta to allow his mother to stay in the house for six weeks as he is currently endeavouring to arrange to have her re-housed. His own house and lands consisting of six acres or thereabout situate at Naul, Co. Dublin, is currently on the market. The six week period is required with a view to obtaining accommodation for her as an interim measuring pending the sale of his own property and of course to provide vacant possession to Aer Rianta as per the terms of settlement. With that in mind he has requested us to ask for the release of the monies on joint deposit or alternatively the sum of €10,000 to be released directly to himself in order to effect the letting of a residential dwelling for his mother and to furnish vacant possession of the dwelling to Aer Rianta…”
27. On 11th August, 2004, Aer Rianta’s solicitors wrote to McAlinden & Gallagher referring to their letter of 28th June and to subsequent telephone conversations between the solicitors. The letter records that the defendant has confirmed that he has vacated the lands at Huntstown, Co. Meath and asked for confirmation that Mrs. Monks has also vacated their client’s property at Huntstown. It appears that the reference to “Co. Meath” was an error and should have been Co. Dublin because that is how the property at Huntstown is described in the settlement agreement, the contract for sale and in Folio 2591.
28. The balance of the deposit was paid out in accordance with the terms of the agreement and this was confirmed by Mr. Gallagher, the defendant’s former solicitor, who agreed that the release of the monies was on the basis of the confirmation by him that all of the lands including McCabe’s field would be available to Aer Rianta to take over from 30th June, 2004.
29. Although planning permission for the new Air Traffic Visual Control Tower was granted on 12th February, 2010, the project did not proceed until August 2015, due to the economic downturn in the State.
30. BAM Civil Limited was the successful tenderer and commenced enabling works on site on 13th December, 2016. These works were to include the clearance of the relevant lands including McCabe’s field and the demolition of the derelict cottage and removal of all scrub and overgrowth. It was anticipated that these preliminary enabling works would be completed by the end of May 2017.
31. This work was disrupted by the defendant who, on 14th December, 2016, placed signs on trees at the site claiming ownership and drove his car onto McCabe’s field making it difficult for works to continue. He threatened to escalate matters further by placing containers and trailers on the land. As a result, BAM Civil Limited ceased work and removed the machinery from McCabe’s field until an interlocutory injunction was obtained on 2nd February, 2017. BAM Civil Limited have given formal notice, by letter dated 16th December, 2016, of an event causing delay to them and there may be financial consequences for the plaintiffs. These consequences have yet to be ascertained.
Discussion
32. The defendant maintains that he is the owner of McCabe’s field notwithstanding the extensive documentary evidence to the contrary which has been referred to earlier in this judgment. Section 31 of the Registration of Title Act 1964, provides that:-
“The register shall be conclusive evidence of the title of the owner to the land as appearing on the register and of any right, privilege, appurtenance or burden as appearing thereon; and such title shall not, in the absence of actual fraud, be in any way affected in consequence of such owner having notice of any deed, document, or matter relating to the land…”
33. The land registry folio which has been produced to the court records that, following the cancellation of ownership of the Minister of Industry and Commerce on 14th February, 2007, Dublin Airport Authority is the full owner of the lands contained in Folio 2591 including McCabe’s field.
34. The defendant has made varying claims as to the period for which he has been in possession of the property. In his statement of evidence, he asserted that in 1969, his father handed him the keys of the house and told him it was his. He was referring to McCabe’s Cottage and field. At other times, he said he was in possession of it since 1990. He claims that in February 1990 at a meeting of his family, his father Mr. James Monks stated that he wished to leave McCabe’s field to the defendant. The defendant is supported in this evidence by his brother, Mr. Alan Monks, and his sister, Mrs. Katherine McGuirk.
35. It is not necessary for me to decide whether or not such a meeting took place and whether Mr. James Monks expressed such an intention. There is no evidence that Mr. James Monks ever transferred McCabe’s field to the defendant. The fact is that in November 1992, Mr. James Monks sold certain properties including McCabe’s field to Aer Rianta for a sum of £340,000.00. At the time of sale he made a declaration that he was the full owner of McCabe’s field. There is a High Court order in proceedings bearing record No. [2000 No. 10996 P.] in which the defendant was restrained from occupying McCabe’s field and was ordered to deliver up possession of it. There is a further settlement agreement on 20th February, 2004, whereby the defendant agreed to give up possession of McCabe’s field. The defendant was legally represented when he entered into that settlement. Mr. Conor Wyse, Head of Commercial Legal Affairs with the second named plaintiff, gave evidence that the balance of the deposit monies retained from the sale by Mr. James Monks were released to the defendant in 2015 when vacant possession was obtained of the dwelling house which had been occupied by the late Mrs. Monks and McCabe’s field had been delivered up by the defendant.
36. Evidence was given by the defendant and a number of other witnesses, including his siblings, that he carried on various activities on McCabe’s field for the past twenty-five or thirty years. The defendant himself concedes that he was not carrying on business there but certain activities were carried out by way of a hobby. These included selling car parts, logs and Christmas trees. In a reply to a notice for particulars in these proceedings, the defendant stated that these activities were “…concealed from the view of passersby for security reasons”. Evidence was called on behalf of the plaintiffs in which various employees who regularly passed McCabe’s field said they never saw any activity being carried out there. I found those witnesses to be credible.
37. Having considered the evidence on this point, I am satisfied that the defendant did carry out some sporadic activity on McCabe’s field over a period of years but that it was not a business, was very intermittent and was not readily noticeable to passersby. It was, in fact, concealed.
38. This evidence is supported by a series of aerial and other photographs which were produced to the court by both the plaintiffs and the defendant. The photographs were taken in 2003, 2004, 2005, 2009, 2011 and 2013. They show a field which was largely overgrown with the remains of a derelict cottage on the site. A few cars could be seen on the site in some of the aerial photographs but the overall appearance of the site was one which was quite overgrown and little used. The defendant also produced some photographs of the entrance to the field which presented a similar picture.
39. The legal principles applicable to claims of adverse possession are to be found in the Statute of Limitations Act 1957 (as amended) and in Dunne v. Iarnród Éireann [2016] IESC 47, where Laffoy J. adopted general principles from the judgment of Slade J., as he then was, in Powell v. McFarland [1979] 38 P & CR 452, in the High Court of England and Wales stating:-
“(1) In the absence of evidence to the contrary, the owner of land with the paper title is deemed to be in possession of the land, as being the person with the prima facie right to possession. The law will thus, without reluctance, ascribe possession either to the paper owner or to persons who can establish a title of claiming through the paper owner.
(2) If the law is to attribute possession of land to a person who can establish no paper title to possession, he must be shown to have both factual possession and the requisite intention to possess (‘animus possidendi’).
(3) Factual possession signifies an appropriate degree of physical control. It must be a single and conclusive possession, though there can be a single possession exercised by or on behalf of several persons jointly. Thus an owner of land and a person intruding on that land cannot both be in possession of the land at the same time. The question what acts constitute a sufficient degree of exclusive physical control must depend on the circumstances, in particular the nature of the land and the manner in which land of that nature is commonly used or enjoyed.”
40. There can be no doubt, and I hold, that the owner of the land with the paper title is Dublin Airport Authority and no evidence has been put before the court to suggest otherwise. I am also satisfied that the plaintiffs have performed acts of possession including entering into a caretaker’s agreement with Mr. James Monks, making arrangements for the hedges of McCabe’s field to be cut routinely, carrying out a geophysical survey in 2009, and in facilitating the inspection of the lands for the purpose of a building survey in 2014. Furthermore, the plaintiffs or their predecessors in title have taken active steps to prevent the defendant from using McCabe’s field or asserting ownership over it including in the earlier High Court proceedings. Not only is there no evidence that would tend to suggest that the owner of the paper title had an intention to relinquish possession of McCabe’s field but, on the contrary, there is ample evidence to establish that the second named plaintiff, as registered owner of the land, had always challenged the defendant’s entitlement to ownership of the lands or the use thereof. It entered into a caretaker’s agreement with Mr. James Monks and subsequently a lease and licence agreement in respect of the dwelling house and Conacre lands specifically excluding from such agreement McCabe’s field; it has authorised the carrying out of preliminary works on the land in advance of the construction of a new control tower; and, has made a planning application which includes those lands. All these are ample evidence of an intention on the part of the second named plaintiff not to abandon its title. (See Mulhern v. Brady (Unreported, High Court, 14th February, 2001))
41. None of the activities carried out by the defendant were such that they could displace the true owner of the lands. In carrying out minimal and intermittent activity on the land in a concealed manner, the defendant has not displayed the requisite intention to possess the lands.
42. I am satisfied that the defendant has failed to establish the requisite possession and intention to possess the lands and has not displaced the owner of the land with paper title for any period. Accordingly, it is not necessary to consider what, if any, significance could be attributed to the purported duration of possession as alleged by the defendant.
43. In the light of the clearest possible evidence of the sale of the lands to Aer Rianta by Mr. James Monks, the subsequent court order of Kearns J. made on 10th November, 2003, in High Court proceedings record No. [2000 No. 10996 P.] and the subsequent settlement of those proceedings by the defendant his persistence in claiming an entitlement to McCabe’s field can only be described as extraordinary and audacious.
Conclusion
44. The plaintiffs are entitled to an order in the terms of relief No. 1, 2, 3 and 5 in the statement of claim.
45. So far as relief No. 4 is concerned, I will hear the parties on the appropriate order to be made having regard to the settlement agreement of 20th February, 2004.
46. As counsel for the plaintiffs have informed the court that it is not possible at this stage to quantify the damages for trespass, I will hear the parties to how and when that issue should be dealt with.
Dublin City Council v. McGrath
[2004] IEHC 45 (12 March 2004)
Judgment of Carroll J. delivered the 12th day of March, 2004.
The defendant is a tenant of the plaintiff, Dublin City Council, in Eamonn Ceannt Tower in Ballymun, which is due to be demolished as part of the Ballymun Regeneration Programme. There were originally 90 tenants in the Tower, 88 of whom have been re-housed by the Council; only the defendant and one other tenant, Veronica McDonald and her family remain.
The defendant’s tenancy agreement dated 21st March, 1995 provides that the tenancy might be terminated at any time on giving four weeks’ notice by either party. Clause 28 provides that the tenant should on the termination of the tenancy peaceably and quietly deliver up possession of the dwelling to the Corporation (the predecessor in title to the Council).
Having endeavoured to come to agreement with the defendant by offering different alternative accommodation, the Council gave notice to quit, dated 11th November, 2003, in accordance with the tenancy agreement to the defendant to deliver up possession on 15th December, 2003. Notice to quit was duly served. Prima facie the defendant is now a trespasser.
The defendant had applied for a transfer out of the area on18th September, 1996. The defendant, who is a single mother with one young son now aged ten, wants a transfer to Finglas, where her parents reside. Her son has been under the care of Temple Street Hospital since he was four years of age and has had a lot of surgery to his hip which has been weakened due to cysts. He has been in a wheelchair post-operatively for a time but is not now. The defendant is the youngest of eleven siblings, many of whom live in Finglas. Her son is enrolled in school in Finglas and he goes after school to his grandparents where he is collected by his mother, the defendant, after she finishes work.
Having been previously refused, the defendant was awarded overall medical priority on 15th December, 2003, for suitable accommodation due to the physical condition of her son. She is placed in a queue of people with a similar medical priority seeking accommodation in Finglas.
The alternative accommodation which the defendant has been offered includes (1) a 60 sq. m., 2-bedroomed apartment at site 372, Gerry Cahill, Ballymun, (2) a 60 sq. m., 2-bedroom bungalow at 443 Cahill Crimmins, Ballymun, (3) a newly-constructed house at 11 Woodhazel and (4) temporary alternative accommodation in a flat at 82 Sillogue Avenue, pending transfer to Finglas. She is not willing to accept any of these.
In her affidavit she says that far from refusing to vacate her premises in Ballymun she is most anxious to quit Ballymun and all she seeks is suitable alternative accommodation in Finglas. Further, she says her son has been required to live in unsuitable conditions. Her quality of life in the flats has been non-existent for the last number of years. She has been forced to endure having industrial construction work all around her. She suffered regular disruption to services for many months. She has been without water, heating, electricity, cable and telephone at regular intervals and for protracted periods. She says she is not seeking to frustrate the demolition of the tower but is seeking to ensure the Council exercises its statutory power in a reasonable and rational manner to offer her appropriate alternative accommodation. She says any offer of accommodation in Ballymun will not address her housing need. So her position is that no matter what accommodation she is offered in Ballymun, it is not suitable.
The Council avers it has not suitable accommodation in Finglas and that in any event she must take her place in the queue. It estimates it will take about a year to eighteen months for her to be re-housed in Finglas. On behalf of the Council it is stated that until the tower is vacated the proposed contractor would not be in a position to proceed to carry out demolition. Delay in entering into a contract may result in the project having to go through the tendering process again and result in increased building costs. Delays in demolition of the tower may have a detrimental affect on funding for the leisure centre and civic amenities. If the tower is not demolished the entire project, which costs approximately €42 million, will be thrown off course and considerable delay and expense incurred as a result. There will be inconvenience to the tenants of other blocks who are awaiting work to commence on their blocks. The anticipated date for gaining possession of the tower was the 10th November, 2003.
The conditions described in the Tower are horrific. The tower has become a hive of antisocial behaviour. The local Guards state in a letter of 15th December, 2003 that local youths gather on the stairwell, drinking, injecting, dealing heroin and engaging in disorderly conduct. One of the photographs shows a syringe full of blood on the stairs. The defendant has erected a steel gate at her entrance, which is a fire hazard. The defendant says the gate was erected for security as the building is derelict. She too acknowledges that there are syringes lying around, that there are drug addicts attacking tenants while high on drugs and says she and her son are breathing in vomit, urine and faeces on a daily basis. She describes the conditions as being unfit for animals, let alone humans.
The Council comes to court seeking a mandatory order that the defendant deliver up vacant possession of her flat in Eamonn Ceannt Tower, Ballymun.
Since the plenary summons claims damages for trespass, I indicated that I would prefer to approach the application on the basis of an injunction to restrain trespass. This would entail an amendment to the pleadings claiming this relief as an alternative to an order for possession.
An application for an interlocutory injunction must be considered in the light of Campus Oil v. Minister for Industry No. 2, [1983] I.R. 88. In order to grant an injunction there must be a fair question to be tried, damages must not be an adequate remedy and the balance of convenience must be in favour of granting the injunction.
It is submitted by the defendant that in addition the court must take the European Convention on Human Rights into account.
Under the European Convention on Human Rights Act, 2003, section 2 provides:
“1. In interpreting and applying any statutory provision or rule of law, a court shall, insofar as possible, subject to the rules of law relating to such interpretation and application, do so in a manner compatible with the State’s obligations under the Convention provisions.”
Section 3 provides:
“1. Subject to any statutory provision (other than this Act), or rule of law, every organ of State shall perform its functions in a manner compatible with the State’s obligation under the Convention provisions.”
The Court being a body through which the judicial powers of the State are exercised is under the definition section an ‘organ of the State’.
The relevant article is Article 8.
“Right to Respect for Private and Family Life:
1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society, in the interest of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”
I accept the defendant’s submission in relation to the European Convention on Human Rights.
The first question to be decided is whether there is a right to an injunction in the first place. The defendant submits that the status quo must be preserved, citing the passage in Campus Oil at p. 106 where O’Higgins C.J. says:
“Interlocutory relief is intended to keep matters in statu quo until the trial and to do no more. No rights are determined nor are issues decided. I think the principle is stated correctly in the following passage from Kerr on Injunctions which was noted by Lavery J. in The Educational Company case:
‘In interfering by interlocutory injunction the court does not in general profess to anticipate the determination of the right but merely gives it as its opinion that there is a substantial question to be tried and that till the question is right for trial a case has been made out for the preservation of the property in the meantime in statu quo.’ ”
The defendant also cited Dublin Corporation v. Burke (Supreme Court, 9th October, 2001, Geoghegan J.,) reversing what was basically an order for possession in a shopping centre, made against a defendant who was in possession when the Corporation bought the property and who claimed title to a tenancy. At p. 17 Geoghegan J. said:
“But even before one comes to consider the balance of convenience, I am extremely doubtful that there would even be a prima facie case for an injunction where a defendant with some back-up evidence (if ultimately accepted) is alleging an actual tenancy in the premises and the plaintiff is for all practical purposes merely sceptical of the truth of the allegation.”
In my view there is no comparison between the defendant in that case claiming a commercial tenancy in a shopping centre and the present defendant claiming she is entitled not to be disturbed in a flat where the conditions are sub-human and where the safety and health of herself and her young son are in danger. She does not want to remain and says so. What she wants is a tenancy in the area of her choice.
While generally the court will preserve the status quo, in my opinion, in the extraordinary circumstances of this case, the court is not constrained ab initio from considering whether an injunction might be granted.
The defendant raises the following issues as issues to be tried at a full hearing.
1. Since an injunction is a discretionary remedy the court is entitled to have regard to other possible remedies. Under s. 62 of the Housing Act, 1966, where there is a refusal to deliver up, the Council could apply to the District Court and if the proofs are in order the District Court can issue a warrant. There is no substantive defence except by way of judicial review (see Dublin Corporation v. Hamilton [1999] 2 IR 486). Alternatively the Council could have brought an action for ejectment for over holding or issued a summary summons claiming possession and then bring a motion before the Master to enter final judgment. Instead the Council has brought a High Court action seeking an injunction.
I do not consider that this is a fair issue to be tried at a full hearing. It could be relevant to a decision whether or not to grant an interlocutory injunction. The Council says it did not pursue a remedy under s. 62 of the Housing Act, 1966, as such a course tended to end up in judicial review with an appeal to the Supreme Court.
In my view, the Council is entitled to come directly to the High Court in an appropriate case, which this is. If the Council have opted for a more expensive form of relief it can be dealt with if necessary by way of costs. It does not go to the merits of the case.
2. The fundamental issue for the defendant is that as a local authority the Council exercises statutory powers under the Housing Acts. In order to be entitled to seek an injunction it must exercise its powers properly. If they have not been exercised properly it is good ground to refuse relief (citing McDonald v. Feeley, Unreported, Supreme Court 23rd July, 1980). In that case the Supreme Court allowed an appeal from the High Court and discharged an interlocutory injunction from the High Court restraining Dublin County Council from taking steps to remove the plaintiff and her family from a site she occupied as a trespasser. In the interval between the granting of an interim injunction and Supreme Court hearing, the housing needs of the plaintiff were considered by Dublin Corporation and consideration was given to what was adequate and suitable accommodation. Two different chalets were offered. The Supreme Court, with reference to the chalet at Rathfarnham, considered the rights of the County Council were at the time of hearing being properly exercised with such regard as was possible in the circumstances to the housing needs of the plaintiff and her family. This was in contrast to the position when interim relief was applied for and continued on an interlocutory basis where the County Council disclaimed any duty to provide adequate housing. The plaintiff in that case feared the possibility of intimidation at the site by another family but O’Higgins C.J said “She cannot be accorded a right of veto over what is proposed merely because of the possibility of unlawful action by others”. He said he was sure appropriate steps would be taken by the Garda authority. He also said at p. 12, “The securing of a chalet through Dublin Corporation is in the circumstances a reasonable discharge by the defendants of their duty as a housing authority”.
While this case is authority for the proposition that a local authority which fails to consider the housing needs of a person within their jurisdiction, is not acting in accordance with its duty and cannot eject a trespasser, it is also authority for the corollary that if there has been reasonable discharge of this duty by considering the housing needs, an authority will not be restrained from moving on a trespasser.
The defendant claims that while she was granted medical priority on medical grounds in December 2003, the medical condition of her son existed for many years prior to that. There was no change. If she had been granted priority earlier, as she claims she was entitled to, she would have long since gone to the top of the medical priority list and have been re-housed in Finglas. Since the Council failed to deal properly with this question, the Council could not validly issue the notice to quit. I accept that this is an issue to be tried at the hearing of the action.
The defendant also raises the issue that the Council as an organ of State must perform its functions in a manner compatible with the State’s obligations under the Convention of Human Rights. She claims that it failed to respect the private and family life and home of the defendant under Article 5. This is another issue to be tried at the hearing of the action.
I am satisfied that damages would not be an adequate remedy for the Council.
On the balance of convenience there are very many weighty reasons why the Council requires possession of the tower which are set out earlier in this judgment. The balance of convenience for the defendant is that she wants to go to the area of her choice. She is not defending a home in which she wants to stay.
The conditions in Eamonn Ceannt Tower are dangerous to the health and safety of herself and her son. She has been offered reasonable alternative accommodation and she is attempting to coerce the Council into granting her a house, which they do not in fact have in Finglas, ahead of all others on the medical priority list. I will not support the defendant in her efforts to achieve this end.
What is at stake is a period of a year to eighteen months until the defendant can reasonably be expected to reach the top of the medical priority list for transfer to Finglas.
I am of opinion that the balance of convenience is very much in favour of the Council. I will grant an injunction to restrain trespass by the defendant in Eamonn Ceannt Tower subject to the defendant being given a temporary tenancy in Ballymun in premises which the Council have made available. I will hear submissions on the exact location, as a further offer has been made.
If I am wrong in granting the injunction, it is open to the defendant to claim damages.
Feehan v. Leamy
[2000] IEHC 118 (29th May, 2000)
Judgment of Finnegan J delivered the 29th day of May, 2000.
1. The plenary summons in this matter issued on the 28th February, 1978 and as then constituted the Plaintiff was Donal G. Feehan and the Defendant was Christopher Leamy. The reliefs claimed were an injunction directing the Defendant to vacate and to cease to trespass on the lands in Folio 28973 County Tipperary (“the lands”) and damages for trespass. On an application for interlocutory relief the Defendant filed an Affidavit sworn by him on the 26th May, 1978 in which he deposed that he had vacated the lands and that he did not intend to go onto the lands pending determination of the proceedings. The Defendant did vacate the lands and the Statement of Claim delivered on the 18th April, 1981 claims damages for trespass without seeking any injunctive relief. The Defence delivered on the 30th August, 1985 while not claiming any title in the lands on behalf of the Defendant sought to put in issue the Plaintiff’s title. A Reply was delivered on the 7th January, 1986. By Order of the Court dated 28th January, 1998 the original Defendant having died on the 4th January, 1987, the action was reconstituted with his personal representative, Patrick Leamy, being substituted as Defendant and the Second named Defendant, Roger Leamy, was added. An amended Statement of Claim was delivered on the 7th May, 1998 wherein it is pleaded that following the death of Christopher Leamy the Second named Defendant wrongfully trespassed upon the lands and kept cattle and sheep thereon: the Plaintiff claims damages and also injunctive relief against both Defendants restraining them from trespassing on the lands. An amended defence was delivered on the 9th October, 1998 in which the Second named Defendant claims to have gone into occupation of the lands in or about May 1981 and to have exclusively used the lands as his own from that date and upon that basis he claims to have acquired title to the lands by adverse possession and counterclaims for a declaration to that effect. By Order dated the 11th June, 1999 Donal G. Feehan having died and it appearing on Affidavit that the said Donal G. Feehan was a trustee of the lands for Michael Feehan. Michael Feehan was substituted as Plaintiff in place of Donal G. Feehan.
2. The delay in bringing this matter to hearing is explained by other proceedings which are relevant to the issues which arise in this action. Edmond Dwyer was registered as owner of the lands on the 16th June, 1953. He died on 2nd October, 1971. Following his death Jimmy Dwyer, the illegitimate son of Edmond Dwyer’s sister, remained in possession of the lands. In 1978 Jimmy Dwyer agreed to sell the lands to the Plaintiff. The purchase monies were paid on the 11th January, 1978 and the sale was completed by a Transfer to Donal G. Feehan dated 3rd March, 1981. The title of Donal G. Feehan was not registered until 12th March, 1997. The title of the Plaintiff was not registered until the 10th December, 1998. The title of Jimmy Dwyer was disputed by the next of kin of Edmond Dwyer who by their attorney, Francis P. Gleeson, issued proceedings against Donal G. Feehan in the Circuit Court by Civil Bill dated the 1st March, 1983. These proceedings were prosecuted as far as the Supreme Court: see 1993 2 I.R. 113 for judgment delivered on 20th June, 1991 and see 1997 1 ILRM 522 for judgment delivered on 21st November, 1996. The effect of the latter decision of the Supreme Court was that Jimmy Dwyer had indeed title to the lands and as a consequence Donal G. Feehan and the Plaintiff acquired good title from him. Thereafter registration of the title of Donal G. Feehan and the Plaintiff took place as hereinbefore mentioned. While these proceedings were pending disputing his title the Plaintiff took the view that he was unable to prosecute the present action.
3. To complete the background to the present claim it is necessary to look at the involvement of the Leamy family with the lands. Edmond Dwyer and Jimmy Dwyer were not particularly industrious farmers. From 1950 onwards the lands, together with other lands of the Dwyers, were rented to Christopher Leamy. In 1951 an arrangement was reached between the Dwyers and Christopher Leamy whereby in lieu of paying rent for the lands Christopher Leamy would pay rates on the lands and on other lands of the Dwyers. This situation continued until 1978 when Jimmy Dwyer sold the lands to the Plaintiff. The dispute as to the title of Jimmy Dwyer was in existence as early as the 9th March, 1978 as by letter of that date Christopher Leamy was requested by the next of kin of Edmond Dwyer to continue to graze the lands in their interest. As was cited above, Christopher Leamy and vacated the lands by the 26th May, 1978.
4. Where a person with good title brings an action for the recovery of lands and the Statute of Limitations is pleaded as a defence, the defendant must prove that the title holder, the plaintiff, has been dispossessed or has discontinued his possession of the lands in question for the statutory period. The onus here accordingly is on the Second named Defendant to establish his claim that he has acquired title by adverse possession.
5. The Second named Defendant gave evidence as follows. His father, Christopher Leamy, had vacated the lands at the time he swore the Affidavit of 26th May, 1978. Thereafter the lands remained unoccupied until December 1981. In the period December 1981 to March 1982 he, the Second named Defendant, kept some twenty to thirty cattle on the lands and provided fodder for them there. The lands were vacant from April 1982 to December 1982 as Christopher Leamy was growing corn on his own lands which adjoined the lands to the East and to the West and as the fences were in poor condition it was not possible to keep cattle on these lands. In the period December 1982 to April 1983, December 1983 to April 1984 and December 1984 to April 1985 he again kept cattle on the lands. In 1985 he took over the family farm from his father, Christopher Leamy and laid out the adjoining lands to the East and to the West of the lands in grass and accordingly he was able to keep cattle on the lands throughout the summer of 1985: on reflection he thought it might have been in 1984 that he first kept cattle on the lands throughout the summer. From the Second named Defendant’s title deeds it appears that he acquired lands to the East of the lands by transfer dated 2nd April, 1984 and lands to the West of the lands by transfer dated 30th January, 1985 and in the light of the dates of these Transfers I find on the balance of probability that the first year during which the Second named Defendant kept cattle on the land throughout the entire year was 1985. In 1985 he manured the lands. From 1985 onwards he kept cattle and sheep on the lands. He used the lands continuously and no-one else used them. In the late 1980’s or early 1990’s he provided a water system on the lands and erected an electric fence. From 1981 onwards he treated the lands as his own and no-one ever complained to him and or said that he should not be there. The first objection to his being on the lands was in 1997 and 1998 when people came to fence the lands on behalf of Donal G. Feehan. In the late 1980’s or early 1990’s he had applied to the Department for Agriculture for area aid in respect of the lands and in so doing had described himself as owner. He was aware of the litigation between the next of kin of Edmond Dwyer and Donal G. Feehan and he swore an Affidavit in aid of the Plaintiff therein, attended a consultation and attended at Court to give evidence both in the Circuit Court and in the High Court in Dublin.
6. Edward Hally, an agricultural contractor gave evidence on behalf of the Second named Defendant. He acted as agricultural contractor for Christopher Leamy in the Autumn of 1984 and saw the lands. The grass was high and it was clear that there was no trespass of cattle onto the lands and that no use was being made of the same. The evidence of Mr. Hally suggests that the first year in which the Second named Defendant used the lands throughout the entire year was 1985.
7. Thomas Prendergast, an agricultural contractor, gave evidence on behalf of the Second named Defendant. From 1984 onwards there were cattle on the Leamy lands to the East and West of the lands and as the fences were bad cattle could roam onto the lands. Up to 1984 the grass was long on these lands and it was clear that they were not being grazed.
8. The Plaintiff gave evidence. He acquired the lands in 1978. He left matters in the hands of his brother, Donal G. Feehan. He went to see the lands after they were purchased. When he was there Christopher Leamy came down and threatened him and every time anyone went there on his behalf they were threatened by Christopher Leamy. Over the years he himself would visit the lands some six times per year until he had an accident some three years ago, after which he had not travelled to the lands. Throughout the time that he travelled to the lands their condition was the same: they were neglected and unused. He never saw any animals on the land. When he went to the lands he would look in at the same from the road and by going up to the gate but did not enter upon the lands proper.
9. Jim Hewitt, an agricultural contractor, gave evidence that he went to the lands on the 29th October, 1998 to fence the boundaries. He was ordered off the lands by the Second named Defendant. He telephoned the Gardai and he was there when they arrived. The Second named Defendant in his presence told the Gardai that the lands belonged to a man in America.
10. Garda Ryan gave evidence that he was a Garda stationed at Cashel and that he was called to the lands on the 29th October, 1998 where he met Mr. Hewitt who had a worker with him and the Second named Defendant. The Second named Defendant told him that the lands were owned by people in America.
In Murphy -v- Murphy , (1980) I.R. 183 at P. 202, Kenny J had this to say as to the meaning of “adverse possession”:-
“The use of the words ‘adverse possession’ in the Act of 1957 does not revive the doctrine of non-adverse possession which existed before 1833. In Section 18 of the Act of 1957 adverse possession means possession of land which is inconsistent with the title of the true owner: this inconsistency necessarily involves an intention to exclude the true owner and all other persons from enjoyment of the estate or interest which is being acquired.”
11. In an unreported judgment, Browne -v- Fahy , Kenny J, 24th October, 1975, a passage from Lord Advocate -v- Lord Lovat , (1880) 2 App. Cas. 173 was cited with approval:-
“The question whether a defendant who relies on the Statute of Limitations was and is in adverse possession must be considered in every case with reference to the particular circumstances…., the character and value of the property, the suitable and natural mode of using it, the course of conduct which the proprietor might reasonably be expected to follow with due regard for his own interest…. all these things greatly bearing as they must under various conditions, are to be taken into account in determining the sufficiency of a possession.”
In Seamus Durack Manufacturing Limited -v- Daniel Considine , (1987) I.R. 677 at 683, Barron J deals with adverse possession as follows:-
“Adverse possession depends upon the existence of animus possidendi and it is the presence or absence of this state of mind which must be determined.”
In Buckinghamshire County Council -v- Moran , (1989) W.L.R. at 162 Slade’s said:-
“If the law is to attribute possession of land to a person who can establish no paper title to possession he must be shown to have both actual possession and the requisite intention to possess (animus possidendi). A person claiming to have dispossessed another must similarly fulfil both these requirements.”
12. On the evidence before me clearly it cannot be said that the Plaintiff discontinued his possession. Having acquired the lands he enforced his entitlement to possession by seeking and obtaining interlocutory relief against the then Defendant in this action, Christopher Leamy. Thereafter he was involved in litigation in which his title was ultimately vindicated by the Supreme Court on the 21st November, 1996. The Plaintiff in evidence said that he could not prosecute his claim against the Defendants in this action until the question of his title should be resolved. It is therefore necessary to see if the Second named Defendant can be said to have dispossessed the Plaintiff. As to dispossession, the comments in Leigh -v- Jack , (1879) 5 Ex. D. 264 have been misunderstood: see Murphy -v- Murphy , (1980) I.R. 183 and Seamus Durack Manufacturing Limited -v- Considine , (1987) I.R. 677. As properly understood they indicate what is required for dispossession. The Plaintiff here at no time had any cattle or other animals on the land and did not require the same for grazing. The only use to which he put the land was to visit it on a number of occasions each year when he would park his car and standing on the road or in the gateway look over the hedge or the gate into the same. He was never prevented from doing this by the Second named Defendant. Insofar as the Plaintiff’s title is concerned the presumption is that it extends to the centre of the road and so when standing at the gate looking into the lands the Plaintiff was in fact standing on his own lands. This he did from the evidence several times a year throughout the period in which the Second named Defendant claiming to have been in adverse possession. As I understand his evidence, the Plaintiff was exercising all the rights of ownership which he wished to exercise in respect of the lands pending the determination of litigators. I find as a matter of fact that he was not dispossessed.
13. Further, I find that the Second named Defendant did not have the necessary animus possidendi to dispossess the Plaintiff. The Defendant’s position was analogous to that of the Defendant in Leigh -v- Jack of whom Cockburn CJ said at p. 271:-
“I do not think that any of the defendant’s acts were done with a view to defeating the purpose of the parties to the conveyances: his acts were those of a man who did not intend to be a trespasser or to infringe another’s rights. The defendant simply used the land until the time should come for carrying out the objective originally contemplated.”
14. I find on the balance of probability that the Second named Defendant’s state of mind was that litigation was pending and dragging on in relation to the lands which were lying idle and ungrazed. The Second named Defendant was a witness for the next of kin of Edmond Dwyer and to some extent must have been aware of the progress of the proceedings. When the events occurred to which the Gardai were called on the 29th October, 1998 the Second named Defendant told Garda Ryan in the presence of Mr. Hewitt that the lands belonged to a man in America. This answer indicates to me the absence of the necessary animus possidendi – an intention to preclude the true owner and all other persons from enjoyment of the estate or interest which is being acquired.
15. In summary then the Second named Defendant has failed to satisfy me on the evidence that he has dispossessed the Plaintiff and also, insofar as he was in possession of the lands, that he was in possession of the same with the necessary animus possidendi. Accordingly, I propose granting the injunctive relief sought by the Plaintiff.
Robson v Marquess of Londonderry
Circuit Cases.
24 March 1900
[1900] 34 I.L.T.R 88
Barton J.
Downpatrick, March 14; Belfast, March 24, 1900
Trespass by pheasants—Liability of preserver of pheasants for damage done by them to growing crops of neighbour.
R., holder of judicial tenancy under D., occupied a farm marching upon the demesne belonging to M., in which M. preserved pheasan’s and other game. Action by R. for damages for injuries done to crops on his land by pheasants from M.’s demesne:
Held, that the number of pheasants bred by M. in proportion to the acreage of his demesne was not an unreasonable or non-natural user of his lands, and therefore M. was not liable for damage to crops done by pheasants escaping from his demesne on to lands adjoining.
Robert Robson occupied, as judicial tenant under Baron Dunleath, a farm called Ballyboley, which marched upon the demesne of the Marquess of Londonderry at Mountstewart, where pheasants and other game were preserved. Robson brought a Civil Bill before the County Court Judge of Down at Newtownards Hilary Sessions, to recover £7 damages for injuries done to his crops of wheat and oats during the months of July and Aug., 1899, by pheasants from the defendant’s demesne, by trampling down and pecking at the growing crops. The County Court Judge dismissed the Civil Bill on the merits, and from this dismiss the plaintiff appealed.
Evidence was given by the plaintiff that the defendant bought through the country pheasants’ eggs, and hatched them under hens in coops in his demesne; that old and young pheasants were daily seen in his fields which adjoined the demesne wall; that the keepers of the defendant entered his fields to drive the birds back, and that damage was done to the amount claimed.
The defendant’s land agent proved that in 1899 about 2,000 pheasants were hatched in coops upon the Mountstewart demesne, which contains over 900 acres; that birds hatched in the season of 1899 would not in the months of July and Aug. be strong enough on the wing to fly from the hatching ground to the part of the demesne adjoining plaintiff’s lands.
J. H. Robb for plaintiff.—This case comes within the scope of the principle sic utere tuo ut non alienum laedas, as laid down in Rylands v. Fletcher, L. R. 3 H. L. 330, by Cairns, C., quoting Blackburn, J., in Exchequer Chamber. Bowlston v. Hardy, 3 Cro. Eliz. 547, is an old case, and has been disapproved: Farrer v. Nelson,
15 Q. B. D. 258.
Barton, J.
Lord Londonderry’s agent denied legal liability, but offered some compensation, which was not accepted. The learned County Court Judge dismissed the Civil Bill, and I affirm the dismiss. Mr. Robb relied on the case of Farrer v. Nelson. In that case Baron Pollock held that where *88 a man collected 450 pheasants in coops, in an acre of land within five yards of a neighbour’s lands, he was liable for damage caused by such unnatural, extraordinary, and unreasonable user of his lands. In that case the defendant had practically turned his land into a game farm, and the birds were brought by him on to his lands and kept in these excessive numbers in coops. The present case is very different. Lord Londonderry, as it appears from the evidence, breeds pheasants in the proportion of about two pheasants per acre of his demesne, and breeds them at a distance from his neighbours, where they cannot and do not escape to their lands. The birds in this case are some older birds remaining unshot from former years, which, in comparatively small quantities, breed in the woods along the demesne wall. I cannot hold this to be an unreasonable user of a demesne, and I do not think that wild birds are in the same category with birds practically tame and cooped. The true view of the case is that when these wild birds escaped from Lord Londonderry’s demesne, he ceased to have any shooting rights with reference to them, or have any liability for them. Lord Dunleath, who has the sporting rights on plaintiff’s lands, can shoot them or permit his tenant, the plaintiff, to do so. It is true that in a neighbourly and sportsmanlike spirit Lord Dunleath allows Lord Londonderry’s keepers to drive birds back into Lord Londonderry’s demesne from time to time, and Lord Londonderry in a similar spirit offers compensation to Lord Dunleath’s tenants. But these are unenforceable complaints. The real remedy, if the parties wish to rely on strict legal rights, is for Lord Dunleath to shoot the game or allow others to do so. I do not suggest such a course. I merely point out what I think is the strict legal remedy. I am willing and anxious to state a case for the decision of the Queen’s Bench Division, so that the plaintiff may have the matters discussed and decided in the Superior Courts. The case has undoubtedly some novelty about it.
J. H. Robb. —I am sorry, my lord, my client does not see his way to risk the expense of going to the Queen’s Bench.
Dismiss on the merits affirmed.
Monsanto Plc v Tilly & Ors
[1999] EWCA Civ 3044 (25 November 1999)
LORD JUSTICE STUART-SMITH:
Monsanto plc, the claimants in the action and appellants in this court, are a substantial company, being a subsidiary of a United States’ parent. Its business includes plant biotechnology; this involves research into and development of genetically modified plants and crops (GM crops). This business is carried on at a number of sites throughout the United Kingdom. Only one such site, that known as PBIC Trumpington, is owned by Monsanto. The rest are owned by the farmers in question, the crop being grown under a form of agreement with Monsanto.
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- Monsanto is licensed by the Department of the Environment (DETR) to carry out the research and development by conducting trials at licensed sites. These sites are a matter of public record. The DETR maintains a register of sites and this is also available on its website. The sites change from year to year and the register has to be updated accordingly. There is now no dispute that Monsanto are lawfully conducting their business of producing GM crops in accordance with the terms of the licences.
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- In about June 1998 a number of people founded GenetiX Snowball (GXS). These included the first six defendants and probably also the 10th defendant. GXS is an unincorporated association. The object of GXS is to campaign against GM plants and crops and those, like Monsanto, who are engaged in their research, development and production, to the end that in the first instance the Government should impose a five year moratorium on the growth of GM crops in Britain except in an enclosed environment from which there cannot be an escape of genetic material or pollen and eventually a banning of all such crops so that those who produce them must destroy them.
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- Paragraph 2 of the Defendant’s Defence provided a summary of the views of the defendants and GXS in relation to GM crops and genetic engineering technology as having unpredictable effects, being unsafe and/or harmful for humans and ecology and because it is irreversible. It is said that the growing of GM crops and plants:
(a) permits the transfer of genes between totally unrelated organisms circumventing natural species barriers and permits the random incorporation of these genes into a plant’s own DNA with results which include unpredictable side effects;
(b) exposes humans to unpredictable toxic and allergenic effects;
(c) greatly enhances the potential for the creation of new and more virulent viruses;
(d) is linked to increased and extended use of harmful chemicals, such as herbicides, and the increased creation of monocultures all of which are detrimental to land and water ecology, have a detrimental impact on food security and create a public health risk through contamination of food and pollution of air, land and water courses;
(e) by the incorporation of antibiotic resistant genes into GM plants, increases the risk of exposure of humans and animals to antibiotic resistant bacterial pathogens;
(f) allows or risks cross-pollination with non-GM plants thereby creating plants with the same or similar characteristics as the GM plants, including herbicide resistant weeds and crops and other unpredictable and potentially dangerous results which endanger ecology and cause harm to crops belonging to other farmers;
(g) risks horizontal gene transfer from GM plants to soil and water borne bacteria;
(h) through the system of patenting, undermines the autonomy of farmers and takes ownership, out of common and into corporate ownership often by pirating locally developed knowledge and genetic resources.
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- There is no reason to doubt that these views are genuinely and sincerely held. The third, fourth and fifth defendants, who were unrepresented, all elaborated their views eloquently and at some length. They assert, and it may well be true, that they are views shared by many others. There is nothing whatever unlawful in trying to persuade others and particularly the Government of the rightness of their views provided they do not employ unlawful means to do so, and provided they do not incite others to use unlawful means, such that they are liable in tort to Monsanto.
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- The problem is that the central method of advancing GXS’ campaign is by what is somewhat euphemistically called ‘non-violent action’ of pulling up the GM crops. GXS issue a ‘Handbook for Action’. This is issued to those who ask for it for a price of £3.50. It runs to some one hundred pages and amongst other things describes how an attack on a particular site where GM crops are growing is to be carried out. All farmers who grow the crops and all those like Monsanto who are responsible for their development are told of the campaign and that the crops are liable to attack; but they do not know when or where it will take place. One of the essential elements of the campaign is publicity; care therefore is taken to alert the press in advance that such an action will take place; they are invited to attend a rendezvous from where they are led to the site of the attack, where it is hoped that they will photograph and publicise the uprooting of the crops and any measures taken by the police to restrain those doing so.
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- The first such attack occurred on Saturday 4 July 1998 at a farm at Shirburn in Oxfordshire. The first six defendants attended and defendants one to five pulled up varying numbers of plants up to 100 each. The 6th defendant was present as media liaison officer, supporting the action of the other defendants in such a manner that Monsanto claim that he is a joint tortfeasor with the others, although he did not actually pull up any plants. His liability as a joint tortfeasor is disputed.
Monsanto issued a writ endorsed with a Statement of Claim against the first five defendants on 15 July 1998, complaining of the action at Shirburn and seeking injunctive relief. An interlocutory injunction was granted on the next day by Jowitt J.; this was continued after an inter partes hearing on 30 July. On 18 September Monsanto issued a second writ; the 6th defendant was joined as a defendant, and all six defendants were sued as representatives of GXS. In due course a Statement of Claim and collective Defence were served and an order consolidating the two actions made; the interlocutory injunctions were made in the consolidated action.
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- On 21 January 1999 Monsanto issued a summons under RSC Order 14 for summary judgment seeking to make permanent the interlocutory injunction on the grounds that there was no defence to the claim. The summons came on for hearing before Klevan J. on 19/20 April 1999. He gave all defendants unconditional leave to defend and refused permission to appeal. That permission was granted on 6 July 1999 by the Rt. Hon. Sir Anthony McCowan.
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- Meanwhile on 15 June 1999 the seventh to tenth defendants carried out similar attacks on Monsanto’s ‘Wendy’ site at an agricultural trade show known as ‘Cereals 99’. On 28 July Burton J. held that the seventh to tenth defendants were in contempt of court for breach of the interlocutory injunction. He ordered that they be joined as defendants in the action. They have taken no part in the appeal.
The following issues arise for determination in the appeal:
(i) Whether the judge gave any or any sufficient reasons for his decision; and if he did not, what if any effect that has on the appeal.
(ii) Whether Monsanto had sufficient interest in the land where the GM crops grow or in the crops themselves to maintain an action for trespass to land or trespass to goods, being wrongful interference with goods.
(iii) Whether the respondents have an arguable defence to a claim in trespass to land or goods that their actions are justified as being necessary to protect third parties or in the public interest.
(iv) Whether the respondents are properly sued in a representative action.
(v) Whether the 6th defendant has an arguable defence that he is not a joint tortfeasor in the tort of trespass to land or goods.
“The judge unfortunately gave no reasons for his decision. This I consider a most unsatisfactory practice. There are some sorts of interlocutory applications, mainly of a purely procedural kind, upon which a judge exercising his discretion on some such question as whether a matter should be expedited or adjourned or extra time should be allowed for a party to take some procedural step, or possibly whether relief by way of injunction should be granted or refused, can properly make an order without giving reasons. This being an application involving questions of law, is in my opinion clearly not such a case. Litigants are entitled to know on what grounds their cases are decided. It is of importance that the legal profession should know on what grounds cases are decided, particularly when questions of law are involved. And this court is entitled to the assistance of the judge of first instance by an explicit statement of his reasons for deciding as he did.”
To the same effect is Eagil Trust Co Ltd v Pigott-Brown [1985] 3 AER 119 CA per Griffiths LJ at p122 and Flannery and another v Halifax Estate Agencies Ltd The Times 4 March 1999 CA.
Mr Gordon QC, on behalf of the 1st, 2nd and 6th respondents, submitted that in giving leave to defend on a summons under RSC Order 14 or now in refusing summary judgment under CPR pt 24 the judge is not obliged to give reasons. It was, he said, an exception to the general rule and he likened it to the grant of permission to appeal granted either by the judge at first instance or by a single Lord Justice on paper or to the grant of permission to apply for judicial review. Mr Gordon cited no authority for this proposition and I know of none. Moreover, in my judgment the analogy is not sound. In granting permission to appeal, as opposed to refusing it, a judge need not give reasons; what he is saying is that the grounds of appeal, or in the case of the judge at first instance the argument that has been advanced, are arguable with a reasonable prospect of success. So too in granting permission to apply for judicial review, the judge indicates that the grounds put forward in the Form 86A are properly arguable. He need do no more. If the judge in either situation considers that some grounds are not properly arguable he should say so, and he must give his reasons, albeit briefly, but sufficiently for the party affected to know the reasons and challenge them if need be.
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- Did the judge give adequate reasons? The judge listened to argument for the best part of two days. He said that summary judgment was not appropriate where questions of law or construction arose which might take days to argue. He referred to the provisions of Order 14 rule 3. He then said that he was satisfied that the plaintiff’s application came within the rule and that the preliminary requirements had been made out. It was for the defendants to show cause why judgment should not be given against them.
He then referred to the defendants’ submissions that the ingredients of the torts then relied upon, namely wrongful interference or trespass to goods, interference with business and conspiracy to injure, had not been made out and that they had raised a defence of justification in the public interest and cited a passage from Clerk and Lindsell on Torts 17th Ed. paragraphs 1-46. He then stated that the claimants did not accept that an arguable defence of justification would arise. The judge then expressed his conclusion as follows:
“Without going further into the many matters that have been raised in full argument I am persuaded that the defendants have shown cause why final judgment should not be given against them today.
The area of the representative action is one area that causes me a little concern, and the area of justification. Whilst I might form a view, that is not the test. The test is whether legitimate arguments have been raised and should be canvassed at a full hearing. I am just persuaded without saying more on the other areas that have been raised that the defendants should be allowed to have the full trial and not be prevented by a final order today.”
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- This hardly does justice to the arguments raised and canvassed at some length. I find it difficult to know whether the judge thought that complex and difficult questions of law arose which were unsuitable for summary judgment, whether the claimants had not made out the ingredients of the torts or whether his “areas of a little concern” on the issue of justification or representative action were sufficient to justify granting unconditional leave to defend. It is difficult to see how the question of representative action should prevent summary judgment being given against the defendants in their personal capacities, if this was otherwise warranted.
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- Mr Gordon drew our attention to two or three short passages in the transcript of the argument and submitted that they clarified the judge’s reasons. For my part I do not think they assist at all. In any event it is doubtful whether a point made by the judge in argument should be imported into the judgment without some express reference.
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- Mr Gordon is on firmer ground when he submits that for all practical purposes it does not now greatly matter whether the judge has given proper reasons or not. There is no question of a retrial or remission to the judge. This court is seized of the matter and can make up its own mind. If there were any question of the judge exercising his discretion, failure to give proper reasons would be material and the court would not have to exercise the same restraint that we show when interfering with judicial discretion. But I do not think that arises here. The only problem is that this court does not have the advantage of a reasoned judgment and the respondents do not have that benefit either.
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- One further point should be made at this stage. Before the judge Monsanto had contended that the defendants’ actions constituted three different torts, namely trespass to goods, interference with business and conspiracy to injure. Neither of the two latter torts are particularly straightforward and can be regarded as in a developing field of the law. There might be more scope for a public interest defence; it may have been this factor which influenced the judge. But if Monsanto are entitled to succeed in trespass, then it is unnecessary to consider whether they can also succeed in these more esoteric torts. Monsanto are not seeking damages, which might vary according to which tort is established. In this court Mr Lyndon-Stanford QC, with some encouragement from the court, wisely confined his case to trespass.
I do not consider that it makes any practical difference in this case. But the court should adopt the test in CPR pt 24 which gives somewhat wider scope for dismissing an action or defence. As Lord Woolf MR said in Swain v T. Hillman (male) & TC Gray CA transcript 21 October 1999 at p4:
“Under Part 24.2, the court now has a very salutary power, both to be exercised in a claimant’s favour or, where appropriate, in a defendant’s favour. It enables the court to dispose summarily of both claims or defences which have no real prospect of being successful. The words “no real prospect of being successful or succeeding” do not need any amplification, they speak for themselves. The word “real” distinguishes fanciful prospects of success or, as Mr Bidder submits, they direct the court to the need to see whether there is a “realistic” as opposed to a “fanciful” prospect of success.”
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- Do Monsanto have a sufficient interest in the crop to be able to maintain an action for trespass either to land or goods? Hitherto Monsanto have based their case on interference with or trespass to goods. And in the early stages of the argument in this court Mr Lyndon-Stanford concentrated on this cause of action. However, it is apparent that the facts pleaded could also give rise to an action for trespass to land, even in those cases, which are the majority, where Monsanto do not own the land. And in the light of the authorities to which I will refer, Mr Lyndon-Stanford sought to extend the claim to trespass to land. Mr Gordon conceded that Monsanto had a sufficient interest to maintain an action for trespass to goods; and he did not seriously contest the claim on the basis of trespass to land. However, since the 3rd, 4th and 5th defendants were not bound by the concession, and because it may affect those in future who seek to take similar action to the defendants, this court must be satisfied that Monsanto do have a sufficient interest. I am so satisfied.
“Now it is clear that at common law, for the same land, though hardly for the same portion of it, two persons may be in possession at the same time, and each can bring trespass. In the case of a grant by the owner of the soil of the right to herbage, vestura terrae, or growing crops, the owner can bring trespass for damage to his right to the soil; the person having a right to the herbage for damage to the herbage or crops; but neither could bring trespass for the damage to the other’s right.”
So too in Wellaway v Courtier [1918] 1 KB 200 the purchaser of a crop of turnips growing on a third party’s land was entitled to maintain an action for trespass to land in respect of the damage to the turnips done by the defendant’s sheep.
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- Ordinarily growing crops do not become goods until they are severed from the land. Once they are so severed the owner of the crop can maintain an action for wrongful interference with the goods. The defendant’s actions in uprooting the crop amounted to severance, and therefore an action for trespass to goods will lie. For practical purposes it makes little difference in this case whether the tort is trespass to land or goods, though in my opinion it should properly be regarded as trespass to land which affords Monsanto somewhat wider protection, for example in relation to a poisoning of the crop without uprooting.
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- The arrangements between the farmer and Monsanto are governed by a standard form of agreement. It is unnecessary to set it out at length. The seed is the property of Monsanto; the drilling, spraying and co-ordination of the trial is done by Monsanto’s contractor. More importantly it is provided that ‘the crop resulting from the tests are all the property of Monsanto’. This is clearly sufficient to enable Monsanto to maintain the action for trespass both on sites which they do not own as well as those they do.
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- Do the respondents have an arguable defence of justification in the public interest? The pleading of this defence is exigious and lacking in particularity. In paragraph 7 of the Defence it is said that ‘the acts of the defendants were necessary to protect third parties and their property and/or were in the public interest’. Under pressure from the court to define the nature of the necessity and the public interest, Mr Gordon relied on the matters pleaded in paragraph 2 of the Defence (set out in para. 4 above). He submitted that the question for the court was – do the dangers set out in paragraph 2 of the Defence constitute a real danger to the public so as to justify in law the actions of the defendants? Further analysis showed that the defendants were claiming to protect those in the vicinity of the crops, such as organic farmers whose crops might be cross-pollinated, thereby losing their organic status and organic bee-keepers who would be similarly affected if their bees sucked the GM crops. But they were also claiming to protect the wider public. Indeed the three respondents who appeared in person are convinced that the crops present a danger to mankind in general and farmers in the Third World in particular.
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- Furthermore it is apparent that the respondents are seeking to justify their actions by averting the dangers referred to in two different and, as it seems to me, inconsistent ways. First it is said that they are entitled to protect those in the vicinity from immediate danger by uprooting the crops. If this is really so, then it is clear that the whole crop must be eradicated, since nothing less will achieve its purpose. But this is not what is happening and it is the essence of the GXS campaign that the uprooting is symbolic and only a relatively small number of plants are to be uprooted. This is because the real purpose of the campaign, as it is perfectly apparent from a perusal of the Handbook, is to attract publicity to the cause. The defendants are frustrated that they have been unable to change government policy by the strengths of their arguments. It is the breaking of the law, with its potential for martyrdom which affords far better publicity than any other. Indeed I think this is the real answer to the question which the court posed to Mr Gordon, why do the defendants need to break the law to obtain publicity? It seems to be implicit in GXS method of operating that they cannot attract sufficient attention to their cause without breaking the law. It would in my judgment be an astonishing proposition if the law were to recognise this as justification for law breaking. Many people have strong views about what they perceive to be dangerous or unacceptable; in some cases their perceptions are widely shared, in others not; they try and influence government into making illegal and criminal their particular object of dislike or fear. There are campaigns against disposal of nuclear waste, smoking, alcohol, motorcars, abortion, experiments on animals, hunting, the use of animal skins for clothing, to mention but a few.
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- The respondents are anxious to have a full trial at which they desire to call experts who will support the various dangers alleged to exist. If they do establish them, presumably on a balance of probability, then it is said their actions are justified. But a moment’s reflection shows that the issue is incapable of being tried in a court with our adversarial system of justice. Moreover, Mr Gordon submitted that it would be necessary for the court to conduct some sort of balancing exercise to see whether the law breaking in question was proportionate to the danger. Thus pulling up a number of GM plants might be justified, but blowing up Monsanto’s chemical plant might not. It seems to me that if this really is the law, the law would be setting itself a task which no court could possibly answer nor could the outcome of the case possibly be predicted by lawyers. So that it would be impossible to advise in any case whether the defence of justification would succeed. The truth is in my judgment that the respondents wish to have the benefit of advancing their views in the forum of the court, with all its attendant publicity, not because it can amount to a defence, but because it is an admirable opportunity to proselytise their views.
(i) a plea of justification of acting in the public interest to avert danger is known to the law as a defence to an action in trespass.
(ii) the situations in which the defence is available are not confined to emergency, actual and obvious danger or immediate necessity.
(iii) a defendant can act to protect the person or property of a third party.
(iv) that the parameters of the defence are not yet defined and the court should not decide the case on summary trial until the acts are established and the balancing exercise to which I have referred in paragraph 26 can be carried out.
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- In support of the first three of these propositions Mr Gordon relied on the speech of Lord Goff of Chieveley in Re F (Mental Patient) [1990] 2 AC 1. That case was concerned with what should happen where an adult was unable through unconsciousness or mental incapacity to give consent to an operation, in that instance sterilisation, which was considered to be in the best interest of the patient. The House of Lords held that the lawfulness of the operation depended on whether the treatment was in the best interest of the patient, and the test for judging whether it was, was the Bolam test (Bolam v Friern Hospital Management Committee [1957] 1 WLR 582). The case is a long way from the present, since Monsanto are able to give or withhold consent to trespass and it is inconceivable that they would consider it in their best interests to consent.
“Upon what principle can medical treatment be justified when given without consent? We are searching for a principle upon which, in limited circumstances, recognition may be given to a need, in the interests of the patient, that treatment should be given to him in circumstances where he is (temporarily or permanently) disabled from consenting to it. It is this criterion of a need which points to the principle of necessity as providing justification.
That there exists in the common law a principle of necessity which may justify action which would otherwise be unlawful is not in doubt. But historically the principle has been seen to be restricted to two groups of cases, which have been called cases of public necessity and cases of private necessity. The former occurred when a man interfered with another man’s property in the public interest – for example (in the days before we could dial 999 for the fire brigade) the destruction of another man’s house to prevent the spread of a catastrophic fire, as indeed occurred in the Great Fire of London in 1666. The latter cases occurred when a man interfered with another man’s property to save his own person or property from imminent danger – for example, when he entered upon his neighbour’s land without his consent, in order to prevent the spread of fire onto his own land.
There is, however, a third group of cases, which is also properly described as founded upon the principle of necessity and which is more pertinent to the resolution of the problem in the present case. These cases are concerned with action taken as a matter of necessity to assist another person without his consent. To give a simple example, a man who seizes another and forcibly drags him from the path of an oncoming vehicle, thereby saving him from injury or even death, commits no wrong. But there are many emanations of this principle to be found scattered through the books. These are concerned not only with the preservation of the life or health of the assisted person, but also with the preservation of his property ( sometimes an animal, sometimes an ordinary chattel) and even with certain conduct on his behalf in the administration of his affairs. Where there is a pre-existing relationship between the parties, the intervenor is usually said to act as an agent of necessity on behalf of the principal in whose interests he acts, and his action can often, with not too much artificiality, be referred to the pre-existing relationship between them. Whether the intervenor may be entitled either to reimbursement or to remuneration raises separate questions which are not relevant in the present case.
We are concerned here with action taken to preserve the life, health or well-being of another who is unable to consent to it. Such action is sometimes said to be justified as arising from an emergency; in Prosser and Keeton, Handbook on Torts, 5th ed. (1984), p117 the action is said to be privileged by the emergency. Doubtless, in the case of a person of sound mind, there will ordinarily have to be an emergency before such action taken without consent can be lawful; for otherwise there would be an opportunity to communicate with the assisted person and to seek his consent. But this is not always so; and indeed the historical origins of the principle of necessity do not point to emergency as such as providing the criterion of lawful intervention without consent. The old Roman doctrine of negotiorum gestio presupposed not so much an emergency as a prolonged absence of the dominus from home as justifying intervention by the gestor to administer his affairs. The most ancient group of cases in the common law, concerned with action taken by the master of a ship in distant parts in the interests of the shipowner, likewise found its origin in the difficulty of communication with the owner over a prolonged period of time – a difficulty overcome today by modern means of communication. In those cases, it was said that there had to be an emergency before the master could act as agent of necessity; though the emergency could well be of some duration. But when a person is rendered incapable of communication either permanently or over a considerable period of time (through illness or accident or mental disdorder), it would be an unusual use of language to describe the case as one of “permanent emergency” – if indeed such a state of affairs can properly be said to exist. In truth, the relevance of an emergency is that it may give rise to a necessity to act in the interests of the assisted person, without first obtaining his consent. Emergency is however not the criterion or even a prerequisite; it is simply a frequent origin of the necessity which impels intervention. The principle is one of necessity, not of emergency.”
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- I cite this whole passage although Mr Gordon relied only on the second and final paragraphs. I would make a number of observations on the passage. First I doubt whether the reference to the right to destroy neighbouring houses in event of serious fire can be regarded as any longer correct. In Burmah Oil Co Ltd v Lord Advocate [1965] AC 75 at p164G Lord Upjohn, after referring to the supposed right and the cases where commanders of ships had scuttled them to avoid them falling into enemy hands, said:
“No doubt in earlier times the individual had some such rights of self-help or destruction in immediate emergency, whether caused by enemy action or by fire, and the legal answer was that he could not in such circumstances be sued for trespass on or destruction of his neighbour’s property. Those rights of the individual are now at least obsolescent. No man now, without risking some action against him in the courts, could pull down his neighbour’s house to prevent the fire spreading to his own; he would be told that he ought to have dialled 999 and summoned the local fire brigade. No man now could conceivably erect a bulwark to prevent enemy invasion.”
That case was concerned with whether the Crown in the exercise of the royal prerogative could confiscate and destroy property in the dire emergency of war to prevent it falling into enemy hands without paying compensation. It was held that they could not. If that is correct, it strongly suggests that the individual has no right to destroy the property of another in the public interest in the sense of protecting others from danger, save in very restricted circumstances; still less that he may do so to attract publicity to what is alleged to be a good cause or to persuade government to legislate against a perceived danger.
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- The third and fourth paragraphs of the passage cited from Lord Goff’s speech are concerned with action which is for the benefit of the person who for one reason or another is incapable of giving consent. That is what the case was concerned with. It is to be noted that Lord Goff says that in the case of a person of sound mind there will ordinarily have to be an emergency, since otherwise there is an opportunity to communicate with him.
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- Mr Gordon also referred the court to two cases involving shooting dogs worrying sheep. In Cresswell v Sirl [1948] 1 KB 241 it was held that in order to justify shooting the dog it must be shown that the sheep were in real or imminent danger and any reasonable man would, in the circumstances of the case, have concluded that there was no alternative to shooting the dog if the sheep were to be preserved. In that case the sheep were owned by the defendant’s father.
Workman v Cooper [1961] 2 QB 143 was a criminal case, the defendant being charged with malicious damage. He shot a stray fox-hound which had run wild and presented a danger to lambs in the vicinity. It was held that the same test as that laid down in Cresswell’s case applied when considering whether the defendant had a lawful excuse in protecting the property of others.
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- Those cases show that the danger must be immediate and obvious and that a reasonable person would conclude that there was no alternative to the act of trespass. A case which further illustrates the extremely circumscribed extent of the defence of justification by necessity is Southwark Borough Council v Williams [1971] 1 Ch 734. The defendants were in dire need of housing accommodation; in order to satisfy this need they entered empty houses belonging to the council. It was held that the defence of necessity did not justify their entry to the premises. The proceedings were brought for possession and were treated as if the claim was for summary judgment under RSC Order 113. At p743F Lord Denning MR said:
“I will next consider the defence of “necessity”. There is authority for saying that in case of great and imminent danger, in order to preserve life, the law will permit of an encroachment on private property. That is shown by Mouse’s Case (1609) 12 Co. Rep. 63, where the ferryman at Gravesend took 47 passengers into his barge to carry them to London. A great tempest arose and all were in danger. Mouse was one of the passengers. The defendant threw a casket belonging to the plaintiff (Mouse) overboard so as to lighten the ship. Other passengers threw other things. It was proved that, if they had not done so, the passengers would have been drowned. It was held by the whole court “that in case of necessity, for the saving of the lives of the passengers it was lawful for the defendant, being a passenger, to cast the casket of the plaintiff out of the barges…” The court said it was like the pulling down of a house, in time of fire, to stop it spreading; which has always been held justified pro bono publico.
The doctrine so enunciated must, however, be carefully circumscribed. Else necessity would open the door to many an excuse. It was for this reason that it was not admitted in Reg. v Dudley and Stephens (1884) 14 QBD 273, where the three shipwrecked sailors, in extreme despair, killed the cabin boy and ate him to save their own lives. They were held guilty of murder. The killing was not justified by necessity. Similarly, when a man, who is starving, enters a house and takes food in order to keep himself alive. Our English law does not admit the defence of necessity. It holds him guilty of larceny. Lord Hale said that “if a person, being under necessity for want of victuals, or clothes, shall upon that account clandestinely, and animo furandi, steal another man’s food, it is felony…..”: Hale, Pleas of Crown, I. 54. The reason is because, if hunger were once allowed to be an excuse for stealing, it would open a way through which all kinds of disorder and lawlessness would pass. So here. If homelessness were once admitted as a defence to trespass, no one’s house could be safe. Necessity would open a door which no man could shut. It would not only be those in extreme need who would enter. There would be others who would imagine that they were in need, or would invent a need, so as to gain entry. Each man would say his need was greater than the next man’s. The plea would be an excuse for all sorts of wrongdoing. So the courts must, for the sake of law and order, take a firm stand. They must refuse to admit the plea of necessity to the hungry and the homeless; and trust that their distress will be relieved by the charitable and the good.”
At p745H Edmund Davies LJ said:
“But when and how far is the plea of necessity available to one who is prima facie guilty of tort? Well, one thing emerges with clarity from the decisions, and that is that the law regards with the deepest suspicion any remedies of self-help, and permits those remedies to be resorted to only in very special circumstances. The reason for such circumspection is clear – necessity can very easily become simply a mask for anarchy. As far as my reading goes, it appears that all the cases where a plea of necessity has succeeded are cases which deal with an urgent situation of imminent peril: for example, the forcible feeding of an obdurate suffragette, as in Leigh v Gladstone (1909) 26 TLR 139, 142, where Lord Alverstone CJ spoke of preserving the health and lives of the prisoners who were in the custody of the Crown; or performing an abortion to avert a grave threat to the life, or, at least, to the health of a pregnant young girl who had been ravished in circumstances of great brutality, as in Rex v Bourne [1939] 1 KB 687; or as in the case tried in 1500 where it was said in argument that a person may escape from a burning gaol notwithstanding a statute making prison-breach a felony, “for he is not to be hanged because he would not stay to be burnt”. Such cases illustrate the very narrow limits with which the plea of necessity may be invoked. Sad though the circumstances disclosed by these appeals undoubtedly are, they do not in my judgment constitute the sort of emergency to which the plea applies.”
Megaw LJ at p747 said:
“But in the end it is a matter of policy, and I have no doubt that the squatting association are firmly convinced that the policy which they urge and which they would wish to see adopted is indeed the one which is best not only for the members of their association, but for the community as a whole. I have no doubt that the borough council also are convinced that the policy which they have adopted is that which is best for their borough as a whole. It is a matter of policy in the widest sense of the word – a political matter. The borough council are an elected body in a democrartic society. If their policy – the policy which they prefer in a matter in which policy-making was for them – is not that which is accepted by the community as a whole, then the community has its remedy in a democratic society. But what is suggested here is that individuals have the right in law to take steps to go upon the property of the borough council in such a way and with the intention and necessary result of defeating the policy which that elected body has decided to be the appropriate policy. In my judgment the doctrine of necessity in this country does not go so far, or anything like so far, as to say that those who take such a step in such circumstances are not committing an offence against the law, or that when they go upon property of another they are not trespassing.”
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- Megaw LJ’s judgment is of particular interest because he refers to the conflicting principles of the Council and the Squatters’ Association. This is particularly pertinent here where the object of the respondent’s campaign is to change government policy. In a democratic society that must be effected by lawful and not unlawful means. Those who suffer infringement of their lawful rights are entitled to the protection of the law; if others deliberately infringe those rights in order to attract publicity to their cause, however sincerely they believe in its correctness, they must bear the consequences of their lawbreaking. This is fundamental to the rule of law in a civilised and democratic society.
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- As Mummery LJ pointed out in the course of argument, if the respondents wish to challenge the legality of the licences granted by the DETR, they must do so, if at all through judicial review. I must not be taken to encourage such a course because the respondents would have to discharge the very considerable burden of showing that the grant of the licences was perverse in the Wednesbury sense.
-
- For the fourth proposition which I have referred to in paragraph 27 Mr Gordon relied on the recent decision of Barrett v Enfield Borough Council [1999] 3 AER 193. In that case the question was whether the local authority owed a duty of care to the appellant who had been in their care nearly all his life until he was 17. The Court of Appeal upheld the judge’s decision to strike out the claim as disclosing no cause of action inter alia on the basis that it would be contrary to public policy to impose such a duty; in other words it was not fair, just and reasonable to impose such a duty and therefore the three stage test laid down in Caparo Industries plc v Dickman [1990] 2 AC 605 was not satisfied. In the light of the decision of the European Court of Human Rights in Osman v UK [1998] EHRC 293 the House of Lords held that the claim could not be struck out on this basis; it was necessary in order that a balance could be struck between the public interest and the private rights of the claimant for the facts to be explored and determined at trial. Mr Gordon’s submission is that by parity of reasoning the court should not dismiss the respondents’ public interest defence until the facts have been determined. As I understand it he also derives his proposition that the court’s task is one of balancing the public interest against the harm done by the respondents to Monsanto from this case.
-
- I cannot accept Mr Gordon’s submission. If it is part of our jurisprudence that summary judgment should be given in favour of a claimant where there is no triable issue or no other reason why there should be a trial (Order 14) or the defendant has no real prospect of successfully defending the claim (CPR 24.2), the court should not hesitate to do so where it can see that this is the position. This is particularly so where, having regard to the overriding objectives of the rules, if the case were to proceed to trial it would be inordinately expensive and involve issues which, in my judgment, are not justiciable. I have no doubt whatever that the matters relied upon by the respondent are not capable of affording a defence in law. Any amount of argument or development by expert evidence or otherwise would be to no avail.
RSC Order 15 r12(1) provides:
“Where numerous persons have the same interest in any proceedings, not being such proceedings as are mentioned in rule 13, the proceedings may be begun, and, unless the Court otherwise orders, continued, by or against any one or more of them as representing all or as representing all except one or more of them.”
Although an order of the court is binding on those whom the defendants in a representative action represent, the order cannot be enforced without the leave of the court against such persons. See Order 15 r 12(3)(4) & (5). The same rule is incorporated in the Civil Procedure Rules. In Taff Vale Railway v Amalgamated Society of Railway Servants [1901] AC 426 at p443 Lord Lindley said that the principle of bringing and defending actions as representative proceedings ought to be applied to the exigencies of modern life as occasion requires.
“…..the rule should not be limited to certain defined categories of case,…it should be applied flexibly to situations as they developed in order to achieve justice.
The application of the rule is a matter of practical convenience to enable the Plaintiff’s rights to be tried fairly and in order to obtain an effective remedy.
Care must be taken that the rule is not abused. But where a number of unidentified persons are causing injury and damage by unlawful acts of one kind or another, and there is an arguable case that they belong to a single organisation or class which encourages action of the type complained of, and their actions can be linked to that organisation, then the rule enables the Court to do justice in the particular case. The narrower construction of the rule [O.15 r.12] advanced by Mr Warner would in my view deprive the Courts in a situation like this of a useful remedy.”
Purchas LJ’s judgment was to the same effect.
-
- Although it is not correct to say that there are members of GXS as such, the judge was right in my view to regard it as an unincorporated association. Monsanto rely on the following features of GXS as an organisation: It is directed and managed by a co-ordinating group; it has and publicises a postal address, telephone line, facsimile number and e-mail address; it has received [and presumably dealt with] over a thousand enquiries to its office; it has a ‘comprehensive’ web site and a web site administrator; it has a bank account and seeks donations; it has published a 100 page handbook, priced at £3.50 and distributed 600 copies; it publishes a newsletter; it has published a video film, priced at £3.50 which has been ‘well received’; it has a Press/Media Liaison; it has held over 40 public meetings; it trains people to take direct action as part of its campaign; it has undertaken a number of direct actions, the direct action has involved over 70 people; it has branches or local groups which meet regularly in Brighton, London, the South East, and branches in Scotland, Bristol and Cambridge; it acts as a co-ordinating office for proposed uprooting action by its campaigners.
-
- Mr Gordon submits that it is essential in a representative action that all the parties have the same interest and in this case, he says, that all members do not. I have not followed his argument on this point. There is no question of vicarious liability on the part of the respondents for acts of others who may come hereafter and uproot Monsanto’s crops. Moreover, the injunction only applies to conduct which falls within its terms; some other and different conduct involving interference with Monsanto’s rights are not covered. What is important here is that it is a central tenet of GXS that action be taken by uprooting Monsanto (and others’) GM crops. It is that activity which is crucial to the campaign.
-
- To my mind this distinguishes this case from that of United Kingdom Nirex Ltd v Barton and others – The Times 13 October 1986. In that case the organisation was the Lincolnshire and Nottinghamshire against Nuclear Dumping with the inevitable acronym LAND. Although some of the members of the organisation were prepared to break the law, many others had no such intention , were horrified at the suggestion that they might do so, and were intent on pursuing the aims of the organisation to prevent nuclear waste disposal by entirely lawful means. There was a conflict of interest between the two groups. The law-breakers would wish to spread responsibility for their actions more widely onto those who were not prepared to break the law. The latter clearly did not wish to be associated with those who were so prepared. In these circumstances Henry J. refused to make a representative order.
-
- Mr Gordon submitted that nothing is achieved in this case by making an order for a representative action, because under the principle exemplified in Attorney General v Times Newspapers Ltd [1992] 1 AC 191 (the Spycatcher case) Monsanto already have an effective remedy against other members of GXS. There is therefore no point in making injunctions against them; it adds nothing, Mr Gordon submits, to the protection Monsanto already enjoy in respect of anyone who knows of the injunction against individual defendants. But this is not so. Without the representative order other members of GXS minded to carry out similar operations in future are not bound by an injunction. Under the Spycatcher principle they will be in contempt of court only if they are jointly involved with the existing respondents in action by those respondents in breach of the injunction. But for the representative action the interim injunction in this case would not have bound defendants 7-10, since they were not acting in concert with defendants 1-6; mere knowledge of the injunction binding on others is not enough.
-
- In my judgment this is quite clearly a case in which a representative order under RSC Order 15 r.12(1) should be made since otherwise Monsanto do not have adequate protection against violation of their rights. They cannot take preventive action against an attack, because they do not know when or against which of the many sites the attack may be directed. But with the representative order in place, those perpetrating a similar attack will be guilty of contempt of court provided they know of the injunction, which they can hardly fail to do.
“Certain classes of persons seem clearly to be ‘joint tortfeasors’…..two or more persons who agree on common action, in the course of, and to further which, one of them commits a tort. These seem clearly to be joint tortfeasors; there is one tort committed by one of them on behalf of and in concert with another.”
In Credit Lyonnais v ECGD [1998] 1 Lloyds Reports 19 at p35, I said:
“It seems to me to be well established that a person who acts with another to commit a tort in furtherance of a common design will be liable as a joint tortfeasor. It is not enough that he merely facilitates the commission of the tort unless his assistance is given in pursuance and furtherance of the common design.”
The decision of the Court of Appeal in that case was upheld by the House of Lords [1999] 2 WLR 540, but the House did not find it necessary to deal with the law of joint tortfeasor beyond referring to Scrutton LJ’s dictum in the Koursk with approval.
-
- It seems to me to be quite plain that the 6th respondent was within this definition. He was well aware of the planned attack at Shirburn farm and reconnoitred the site the day before. He met the press at a prearranged rendezvous and led them to the site for the purpose of photographing and reporting the uprooting activities. He was present while the others uprooted the plants and he explained the purpose and significance of their acts to the media. All this can be derived from his own evidence.
-
- For these reasons I would allow the appeal. The precise form of the injunction may require some amendment to the proposed order set out in the notice of appeal, since as Pill LJ pointed out during argument, the expression ‘member’ may not be entirely appropriate to those who would take part in uprooting action inspired by Genetix Snowball.
LORD JUSTICE PILL:
The defendants resist new genetic engineering technology on grounds set out in paragraph 2 of their defence which are said to include “that there are unpredictable effects and it is unsafe and/or harmful for humans and ecology and that it is irreversible”. The pleaded particulars of the defendants’ concerns are set out in the judgment of Stuart-Smith LJ and are summarised in the judgment of Mummery LJ which I have had the opportunity of reading in draft. The defendants plead that what would otherwise be trespass when GM plants are uprooted is justified because the acts of the defendants “were necessary to protect third parties and their property and/or were in the public interest”.
Mr Gordon QC for the 1st, 2nd and 6th defendants submits that the question in the action is whether the dangers set out in paragraph 2 of the defence constitute a real danger to the public so as to justify in law the uprooting of plants by the defendants. The question can be sub-divided, he submits, by asking first, is there a real danger? and second how far are the defendants justified in going to defeat it?
Mr Gordon submits that when answering the question in the context of an application for summary judgment the existence of the defence of “necessity” must be acknowledged. He relies on the statement of Lord Denning MR that “there is authority for saying that in case of great and imminent danger, in order to preserve life, the law will permit of an encroachment on private property” (Southwark Borough Council v Williams [1971] Ch 734 at 743). Mr Gordon also relies on the statement of Lord Goff: “That there exists in the common law a principle of necessity which may justify action which would otherwise be unlawful is not in doubt” (in Re F (Mental Patient) [1992] 2 AC 1 at 73). Stuart-Smith LJ has set out the passage in full in his judgment.
It is submitted that Lord Goff has expressed the principle more widely in Re F by stating that “the principle is one of necessity, not of emergency”. The case that there is a “great and imminent danger” is pleaded, Mr Gordon submits. Whether it can be made good depends on a careful examination of the facts. The boundary of the defence should not be laid down upon an application for summary judgment. I did not understand Mr Gordon to submit that because there is great public interest in a subject, requiring determination of a scientific issue, a court could for that reason alone be required to sit and rule upon it at a full trial in a trespass action. If there is such a submission, I reject it.
Reliance is also placed on the decision of the European Court of Human Rights in Osman v United Kingdom ([1998] EHRC 293), as applied by the House of Lords in Barrett v Enfield London Borough Council [1999] 3 WLR 79. In Osman, the European Court of Human Rights upheld a claim that the rights of the Osmans under Article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms had been infringed. Their claim against the police alleging negligence in the prevention and pursuit of crime was struck out on an application of the principle in Hill v Chief Constable of West Yorkshire [1989] AC 53 that, as a matter of public policy, the police were immune from action for negligence in respect of their activities in the investigation and suppression of crime. In Barrett, Lord Browne-Wilkinson analysed the decision in Osman in this way (p 84H):
“The Strasbourg court held that there was in the Osman case a breach of such right of access to the English court, such breach lying in the application of a blanket exclusionary rule which excludes all claims against the police for negligent failure to investigate or protect from crime. In the view of the Strasbourg court, apparently, the applicability of such exclusionary rule has to be decided afresh in each individual case. If this is not done then it is impossible to determine whether the public interest in an efficient police force is or is not proportionate to the seriousness of the harm suffered by the plaintiff in the individual case: see paragraph 150. On these grounds, the Strasbourg Court held that the English court had breached article 6 by striking out the claim made by the Osmans against the police without hearing any evidence by reference to which the proportionality of the rule in that particular case could be judged. The court said that the police had been granted a ‘blanket immunity’ which was disproportionate and therefore an unjustified restriction on the Osmans’ right of access to the court.”
Lord Browne-Wilkinson went on to explain the problems in applying this reasoning to the English law of negligence. He described them as “many and various”. He nevertheless agreed that the action should proceed to trial so that the difficult issues of law which arose might be confronted in the light of the real facts when they are known. By a parity of reasoning, Mr Gordon submits, the defendants should be permitted to call evidence to support their pleaded case. There should be no “blanket immunity”. The parties should have an opportunity to call evidence to enable the court to decide on which side of the line the case falls.
Those arguments fail in my view and for these reasons:
-
- When Lord Goff stated that the principle is one of necessity not of emergency, he was not intending to restrict the need to establish an “imminent danger” in the first two groups of cases he contemplated in his analysis, that is public necessity and private necessity. The examples Lord Goff gives in those groups are both examples of fire, where the danger is imminent and obvious. Lord Goff used the broader expression when analysing the third group of cases “concerned with action taken of necessity to assist another person without his consent”. He was concerned with “action taken to preserve the life, health or well being of another who is unable to consent to it”. To justify trespass, in cases such as the present, where the owner has the ability to refuse consent, the danger must be immediate and readily perceivable.
-
- As pleaded, the alleged dangers are not in that category. I have referred to the manner in which the justification is pleaded in the defence. While it is a pleading point, that is not a criticism of the pleading, but a recognition by the pleader, realistic in my view, that the case cannot be put as one of imminent danger.
-
- In granting summary judgment, and thereby holding that the proposed defence has no real prospect of success, the court is not applying a “blanket exclusionary rule” of the kind found offensive by the Court of Human Rights in Osman. The court is concluding, upon an application of the law to the particular facts pleaded, that the defence of justification has no real prospect of success.
I acknowledge the possibility that a danger may be great while remaining insidious. Investigation of whether GM crops do constitute a danger is of course to be welcomed. The existence of a system of licensing and control by a public body, potentially susceptible to judicial review, is also to be welcomed when novel operations are conducted. The law of trespass does not however acknowledge a defence of justification based on allegations such as those pleaded by the defendants in this case.
By way of postscript, I add that I did not understand Mr Gordon’s central submission to be that the uprooting of plants was justified as a means of obtaining publicity which might lead to a change in the law. That was his extended submission, which I have no hesitation in rejecting. He did also however put the case on the more limited basis already stated, namely that uprooting was justified as a direct response to a real danger. I would accept his submission that in present circumstances a lawful act would not be rendered unlawful if done for a political motive or with the added intention of gaining publicity.
I agree with Stuart-Smith LJ on the other points raised in the appeal and I agree that the appeal should be allowed. I too would hear counsel further as to the precise form of injunction to be granted.
LORD JUSTICE MUMMERY:
I agree that this appeal should be allowed for the reasons given by Stuart-Smith LJ.
I wish to add the following comments on the arguments raised by Mr Gordon QC and the unrepresented defendants
1. Trespass to Land.
The relevant causes of action relied on by Monsanto for summary judgment are trespass to land and to goods. The defendants deny that Monsanto was the owner of or was in possession of the relevant GM oilseed rape and other plants growing on licensed trial sites which do not belong to Monsanto. An action for trespass to land may, however, be brought by a person who is entitled under an agreement with the landowner to exclusive possession of the growing crops : Crosby v. Wadsworth (1805) 6 East 602 at 609, followed in Back v. Daniels [1925] 1 KB 526 at 542. Monsanto have that entitlement under their written agreements with the growers. This defence cannot succeed.
2. Defences.
(1) The Pleading.
The defendants assert that their acts
“….were necessary to protect third parties and their property and/or were in the public interest.”
Further details of that claim can be gleaned from other parts of the defence, from the affidavit evidence and from the defendants’ written and oral submissions
The defendants are supporters of the GenetiX Snowball campaign of “non violent civil responsibility” which “aims to build resistance to new genetic engineering technology on grounds which include that there are unpredictable effects and it is unsafe and/or harmful to humans and ecology and that it is irreversible.”
The defendants’ case is that the creation of GM plants and crops has detrimental effects and that these are matters of public and scientific concern : it permits the transfer of genes between totally unrelated organisms and the random incorporation of these genes into a plant’s DNA with unpredictable side effects ; it exposes humans to unpredictable toxic and allergenic effects; it greatly enhances the potential for the creation of new and more virulent viruses; it is linked to the increased and extended use of harmful chemicals and the increased creation of monocultures with detrimental effects on land, water ecology, food security and public health; it increases the risk of exposure of humans and animals to antibiotic resistant bacterial pathogens; it allows or risks cross-pollination with non-GM plants with unpredictable and potentially dangerous results, including harm to crops of other farmers; and it risks horizontal gene transfer from GM plants to soil and water borne bacteria and, through the system of patenting, undermines the autonomy of farmers .
Further details under these general headings were supplied by the defendants in their written and oral submissions. Special emphasis was laid on the impossibility of regulation and enforcement and on public opposition to GM foods. The unrepresented defendants also made specific complaints about the conduct of Monsanto. They stated their intention to call expert evidence on all these issues so that the court could rule on the public interest question.
The purposes and objects of the campaign invoke the “precautionary principle” in seeking to obtain a five year moratorium on the deliberate release of GM plants in Britain, except for certain government sponsored tests in enclosed systems and the removal by government agency, the farmers or the biotech companies of all existing GM plants. The acts of uprooting and encouraging others to uproot no more than 100 GM plants and crops is part of that campaign. The Defendants expressly disclaim any intention of removing all existing GM plants and crops by uprooting, destruction or damage.
(2) Defence of Necessity.
In exceptional circumstances necessity may justify trespass to land or to goods. But it is impossible to conclude from the nature of the matters which these defendants wish to establish at trial that the necessity defence has any real prospect of success in this case.
The defence is only available to the individual in cases of emergency where it is necessary for the private citizen to act in the face of immediate and serious danger to life or property and the citizen acts reasonably in all the circumstances.
The defendants do not even attempt to establish a case of emergency. The avowed symbolic significance of their actions (see the Handbook for Action paragraph 5.7.2.) and their disclaimer of an intention to pull up all GM plants are hardly consistent with acting in an emergency.
Further, even in cases of emergency, trespass by the individual, in the absence of very exceptional circumstances, cannot be justified as necessary or reasonable, if there exists a public authority responsible for the protection of the relevant interests of the public. In this case the Department of the Environment has that responsibility. In such cases the right of the individual to trespass out of necessity, whether as defender of his own or a third party’s interest or as champion of the public interest, without attempting to enlist the assistance of the public authority, is obsolete.
In Burmah Oil Co Ltd v. Lord Advocate [1965] AC 75 at 164 Lord Upjohn said:
“No doubt in earlier times the individual had some such right of self help or destruction in immediate emergency, whether caused by enemy action or fire, and the legal answer was that he could not in such circumstances be sued for trespass or destruction of his neighbour’s property. Those rights of the individual are now at least obsolescent. No man now, without risking some action against him in the courts, could pull down his neighbour’s house to prevent the fire spreading to his own;he would be told that he ought to have dialled 999 and summoned the local fire brigade.”
(3) Defence of Public Interest.
The defendants do not claim the backing of any general or specific statutory authority to do what they have done to Monsanto’s crops. No case has been cited from any common law jurisdiction or textwriter recognising the protection or promotion of the public interest (as distinct from necessity) as a justification for a private citizen entering the property of another private citizen or inflicting damage on his land or personal possessions. The absence of authority for such a wide ranging common law defence, either for private citizens or for organs of the State, is hardly surprising. As Lord Denning said in Southwark LBC v. Williams [1971] Ch 734 at 744 a plea of this kind would, if allowed, “… be an excuse for all sorts of wrongdoing. So the courts must, for the sake of law and order, take a firm stand.” See also the wise words of Megaw LJ at 747E-H. The fundamental principle of the common law remains very much as stated in Blackstone’s Commentaries Vol.1 139-140:
“So great moreover is the regard of the Law for private property that it will not authorise the least violation of it; no, not even for the general good of the whole community.”
It is for Parliament to enact laws restricting private property rights for the good of the community.
It is neither necessary nor reasonable that the defendants should be entitled to justify at common law their acts of trespass against Monsanto on the grounds of public interest.
On the one hand, there is a public interest in the enforcement of law for the protection of private property in particular and in the maintenance of public order in general. Public confidence in the legal system and in the rule of law would be undermined if the courts refused to enforce the law on the ground that defendants, who wished to establish the validity of beliefs sincerely and genuinely held, were entitled to rely on the public interest to justify wrongs to the property of others who did not share their point of view. It is extremely improbable that a reasonable man would regard the defence proposed as an acceptable reason for the unauthorised presence of anyone, public official or fellow citizen, on his property or on the property of anyone else .
On the other hand, the unavailability of public interest as a justification for trespass does not in any way curtail or prejudice the exercise by the defendants of their undoubted right in a democratic society to use to the full all lawful means at their disposal to achieve the aims and objects of GenetiX Snowball. Supporters can peacefully and effectively pursue those aims and gain publicity and public support for them in many different ways without the need to commit unlawful acts of trespass against Monsanto or anyone else.
Finally I note that one of the Convention Rights in Part II of Schedule 1 to the Human Rights Act 1998 (which is not yet in force) is in these terms-
” THE FIRST PROTOCOL
Article 1
Protection of property
Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.”
I say no more as neither side relied upon it.
3. Private Law and Justiciability.
Even if the defence of public interest were available at common law to justify trespass by individual citizens or by organs of the State, the matters which the defendants intend to establish under that defence and on which they wish to obtain a final and conclusive judgment of the court are not properly justiciable by a court in an action for trespass. The court should for that additional reason refuse to entertain that defence in these proceedings.
These are not public law proceedings challenging the legality of the decision by the Department of the Environment to grant licences to Montsanto to do what they are doing.
These are adversarial private law proceedings to which no public authority is a party; in which the issues before the court are defined by the parties;in which the court will be confined at trial to consideration of the documentary and oral evidence of fact and expert opinion which the parties choose to call; and in which the court will only hear the arguments which the parties and their advisers wish to advance.
In these rather unpropitious circumstances the court will be invited by the defendants to make a seemingly authoritative final “judgment” on issues involving not only fact and expert opinion but also political choices and controversial policies the lawfulness of which are unchallenged in this action. Decisions on broad policy questions concerning the potential risks and rewards of GM crops clearly require input and back-up from sources of information, advice and specialist scientific and technical guidance to which the court does not have access.
By running this line of defence the defendants are directly inviting the court to trespass beyond the proper limits of the judicial function, away from the world of triable issues of hard fact and law and deep into the territory of state policy and political judgment involving matters which have no bearing on Monsanto’s claim for trespass.
The court must resist the invitation to assume jurisdiction to resolve an issue of a kind which it is not its constitutional function to decide and which it is not competent and equipped to decide. Civil proceedings for trespass are not an appropriate vehicle for a determination on whether the growing of GM crops is in the public interest.
The defendants and their supporters can continue to argue freely and to campaign strenuously elsewhere that the growing of GM crops is not in the best interests of the public.
Order: Appeal allowed. No costs. Legal Aid Taxation. Leave to appeal to the House of Lords refused.
Letang v Cooper
[1964] EWCA Civ 5
THE MASTER OF THE ROLLS: On the 10th July, 1957, Mrs Letang was on holiday in Cornwall. She was staying at a hotel and thought she would sunbathe on a piece of grass where cars were parked. While she was lying there, Mr Cooper came into the car park driving his Jaguar motor-car. He did not see her. The car went over her legs and she was injured.
On the 2nd February, 1961, more than three years after the accident, Mrs Letang brought this action against Mr Cooper for damages for loss and injury caused by (1) the negligence of the Defendant in driving a motor-car and (2) the commission by the Defendant of a trespass to the person.
The sole question is whether the action is statute-barred. The Plaintiff admits that the action for negligence is barred after three years, but she claims that the action for trespass to the person is not barred until six years have elapsed. The Judge has so held and awarded her £575 damages for trespass to the person.
Under the Limitation Act, 1939, the period of limitation was six years in all actions founded “on tort”; but in 1954 Parliament reduced it to three years in actions for damages for personal injuries, provided that the actions come within these words of Section 2, sub-section (1), of the Law Reform (Limitation of Actions) Act, 1954:
“Actions for damages for negligence, nuisance or breach of duty (whether the duty exists by virtue of a contract or of a provision made by or under a statute or independently of any contract or any such provision) where the damages claimed by the plaintiff for the negligence, nuisance or breach of duty consist of or include damages in respect of personal injuries to any person”.
The Plaintiff says that these words do not cover an action for trespass to the person and that therefore the time bar is not the new period of three years, but the old period of six years.
The argument, as it was developed before us, became a direct invitation to this Court to go back to the old forms of action and to decide this case by reference to them. The statute bars an action on the case, it is said, after three years, whereas trespass to the person is not barred for six years. The argument was supported by reference to text-writers, such as Salmond on Torts, 13th Edition at page 790. I must say that if we are, at this distance of time, to revive the distinction between trespass and case, we should get into the most utter confusion. The old common lawyers tied themselves in knots over it, and we should do the same. Let me tell you some of their contortions. Under the old law, whenever one man injured another by the direct and immediate application of force, the plaintiff could sue the defendant in trespass to the person, without alleging negligence (see Leame v. Bray, in 1803, 3 East, 593), whereas if the injury was only consequential, he had to sue in case. You will remember the illustration given by Mr Justice Fortescue in Reynolds v. Clarke, in 1726 (1 Strange, 634):-
“If a man throws a log into the highway and in that act it hits me, I may maintain trespass because it is an immediate wrong; but if, as it lies there, I tumble over it and receive an injury, I must bring an action upon the case because it is only prejudicial in consequence”.
Nowadays, if a man carelessly throws a piece of wood from a house into a roadway, then whether it hits the plaintiff or he tumbles over it the next moment, the action would not be ‘ trespass or case, but simply negligence. Another distinction the old lawyers drew was this: If the driver of a horse and gig negligently ran down a passer-by, the plaintiff could sue the driver either in trespass or in case: (see Williams v. Holland, in 1833 (10 Bingham, 112); but if the driver was a servant, the plaintiff could not sue the master in trespass, but only in case: see Sharrod v. London and North Western Railway, in l849 (4 Exchequer, 580). In either case to-day, the action would not be trespass or case, but only negligence.
If we were to bring back these subleties into the law of limitation, we should produce the most absurd anomalies; and all the more so when you bear in mind that under the Fatal Accidents Act the period of limitation is three years from the death. The decision of Mr Justice Elwes, if correct, would produce these results: It would mean that if a motorist ran down two people, killing one and injuring another, the widow would have to bring her action within three years, but the injured person would have six years. It would mean also that if a lorry driver was in collision at a crossroads with an owner driver, an injured passenger would have to bring his action against the employer of the lorry driver within three years, but he would have six years in which to sue the owner-driver. Not least of all the absurdities is a case like the present. It would mean that the plaintiff could get out of the three-year limitation by suing in trespass instead of in negligence.
I must decline, therefore, to go back to the old forms of action in order to construe this statute. I know that in the last century Maitland said “the forms of action we have buried but they still rule us from their graves”. But we have in this century shaken off their trammels. These forms of action have served their day. They did at one time form a guide to substantive rights; but they do so no longer. Lord Atkin told us what to do about them:
“When these ghosts Of the past stand in the path of justice, clanking their mediaeval chains, the proper course for the Judge is to pass through them undeterred”: see United Australia v. Barclays Bank, 1941 Appeal Cases.
The truth is that the distinction between trespass and case is obsolete. We have a different sub-division altogether. Instead of dividing actions for personal injuries into trespass (direct damage) or case (consequential damage), we divide the causes of action now according as the defendant did the injury intentionally or unintentionally. If one man intentionally applies force directly to another, the plaintiff has a cause of action in assault and battery, or, if you so please to describe it, in trespass to the person. “The least touching of another in anger is a battery”. If he does not inflict injury intentionally, but only unintentionally, the plaintiff has no cause of action to-day in trespass. His only cause of action is in negligence, and then only on proof of want of reasonable care. If the plaintiff cannot prove want of reasonable care, he may have no cause of action at all. Thus, it is not enough nowadays for the plaintiff to plead that “the defendant shot the plaintiff”. He must also allege that he did it intentionally or negligently. If intentional, it is the tort of assault and battery. If negligent and causing damage, it is the tort of negligence.
The modern law on this subject was well expounded by my brother Diplock in Fowler v. Lanning, in 1959 1 Queen’s Bench, with which I fully agree. But I would go this one step further: When the injury is not inflicted intentionally, but negligently, I would say that the only cause of action is negligence and not trespass. If it were trespass, it would be actionable without proof of damage; and that is not the law to-day.
In my judgment, therefore, the only cause of action in the present case (where the injury was unintentional) is negligence and is barred by reason of the express provision of the statute.
In case I am wrong about this, and the Plaintiff has a cause of action for trespass to the person, I must deal with a further argument which was based on the opinion of text-writers, who in turn based themselves on a Report of the Committee which preceded the legislation. This was a Committee over which Lord Tucker presided. They reported in 1949. They Recommended that, in actions for damages for personal injuries, the period of limitation should be reduced to two years; but they said:
“We wish, however, to make it clear that we do not include in that category actions for trespass to the person, false imprisonment, malicious prosecution or defamation of character, but we do include such actions as claims for negligence against doctors”.
I think the text-writers have been in error in being influenced by the recommendations of the Committee. It is legitimate to look at the Report of such a Committee, so as to see what was the mischief at which the Act was directed. You can get the facts and surrounding circumstances from the Report, so as to see the background against which the legislation was enacted. This is always a great help in interpreting it. But you cannot look at what the Committee recommended, or at least, if you do look at it, you should not be unduly influenced by it. It does not help you much, for the simple reason that Parliament may, and often does, decide to do something different to cure the mischief. You must interpret the words of Parliament as they stand, without too much regard to the recommendations of the Committee: see Assam Railway v. Commissioners of Inland Revenue, 1935 Appeal Cases at pages 458-9. In this very case, Parliament did not reduce the period to two years. It made it three years. It did not make any exception of “trespass to the person” or the rest. It used words of general import; and it is those words which we have to construe, without reference to the recommendations of the Committee.
So we come back to construe the words of the statute with reference to the law of this century and not of past centuries. So construed, they are perfectly intelligible. The tort of “negligence” is firmly established. So is the tort of “nuisance”. These are given by the Legislature as sign-posts. Then these are followed by words of the most comprehensive description:
“Actions for breach of duty (whether the duty exists by virtue of a contract or of a provision made by or under a statute or independently of any contract or any such provision)”.
Those words seem to me to cover not only a breach of a contractual duty, or a statutory duty, but also a breach of any duty under the law of tort. Our whole law of tort to-day proceeds on the footing that there is a duty owed by every man not to injure his neighbour in a way forbidden by law. Negligence is a breach of such a duty. So is nuisance. So is trespass to the person. So is false imprisonment, malicious prosecution or defamation of character. Professor Winfield indeed defined “tortious liability” by saying that it “arises from the breach of a duty primarily fixed by law; this duty is towards persons generally and its breach is redressible by an action for unliquidated damages”: see Winfield on Tort, 7th Edition, page 5.
In my judgment, therefore, the words “breach of duty” are wide enough to comprehend the cause of action for trespass to the person as well as negligence. In support of this view, I would refer to the decision of this Court in Billings v. Reed, 1945 King’s Bench, 11, where Lord Greene gave the phrase “breach of duty” a similar wide construction. I would also refer to the valuable Judgment in Australia of Mr Justice Adam in Kruber v. Grzesiak, 1963 Victoria Law Reports, 621. The Australian Act is in the self-same words as ours; and I would, with gratitude, adopt his interpretation of it.
I come, therefore, to the clear conclusion that the Plaintiff’s cause of action here is barred by the Statute of Limitations. Her only cause of action here, in my judgment (where the damage was unintentional), was negligence and not trespass to the person. It is therefore barred by the word “negligence” in the statute. But even if it was trespass to the person, it was an action for “breach of duty” and is barred on that ground also.
I would allow the appeal accordingly.
LORD JUSTICE DANCKWERTS: I agree, and I need only add a few words. The question seems to me to be completely covered by the provisions of the Act of 1954, which add a proviso to Section 2, sub-section (1), of the Limitation Act, 1939. I must read the words of the statute again:
“Provided that in the case of actions for damages for negligence, nuisance or breach of duty (whether the duty exists by virtue of a contract or of a provision made by or under a statute or independently of any contract or any such provision) where the damages claimed by the plaintiff for the negligence, nuisance or breach of duty consist of or include damages in respect of personal injuries to any person, this subsection shall have effect as if for the reference to six years there were substituted a reference to three years”.
The terms of this provision are very wide, and, in my opinion, cover the case of a claim for damages for trespass to the person of the Plaintiff. It may be true that the statute is limiting rights which a person might possess at common law, but this argument cannot prevail if the meaning of the words of the statute is plain; and, in my view, the words of the statute are plain in their meaning.
I find support for this conclusion in the statement of Lord Greene in Billings v. Reed, 1945 1 King’s Bench, page 11, notwithstanding that the similar words there under consideration were in a wartime statute, and no very effective contention seems to have been put forward for a different construction.
In my view, trespass to the person involves a breach of duty, as in the case of any other tort, as Mr Bevan said many years ago in his book on negligence. It would be monstrous if the ghosts of the forms of action (abolished over 90 years ago) compelled us to come to a different conclusion.
I agree also with the other grounds for allowing the appeal discussed by the Master of the Rolls in the earlier part of his Judgment.
I, therefore, also would allow the appeal.
LORD JUSTICE DIPLOCK: A cause of action is simply a factual situation the existence of which entitles one person to obtain from the Court a remedy against another person. Historically the means by which the remedy was obtained varied with the nature of the factual situation and causes of action were divided into categories according to the “form of action” by which the remedy was obtained in the particular kind of factual situation which constituted the cause of action. But that is legal history, not current law. If A., by failing to exercise reasonable care, inflicts direct personal injury upon B., those facts constitute a cause of action on the part of B. against A. for damages in respect of such personal injuries. The remedy for this cause of action could before 1873 have been obtained by alternative forms of action, namely, originally either trespass vi et armis or trespass on the case, later either trespass to the person or negligence. (See Bullen & Leake, 3rd Edition). Certain procedural consequences, the importance of which diminished considerably after the Common Law Procedure Act of 1852, flowed from the plaintiff’s pleader’s choice of the form of action used. The Judicature Act of 1873 abolished forms of action. It did not affect causes of action; so it was convenient for lawyers and legislators to continue to use, to describe the various categories of factual situations which entitled one person to obtain from the Court a remedy against another, the names of the various “forms of action” by which formerly the remedy appropriate to the particular category of factual situation was obtained. But it is essential to realise that when, since 1873, the name of a form of action is used to identify a cause of action, it is used as a convenient and succinct description of a particular category of factual situation which entitles one person to obtain from the Court a remedy against another person. To forget this will indeed encourage the old forms of action to rule us from their graves.
If A., by failing to exercise reasonable care, inflicts direct personal injuries upon B., it is permissible to-day to describe this factual situation indifferently, either as a cause of action in negligence or as a cause of action in trespass, and the action brought to obtain a remedy for this factual situation as an action for negligence or an action for trespass to the person – though I agree with the Master of the Rolls that to-day “negligence” is the expression to be preferred. But no procedural consequences flow from the choice of description by the pleader: (see Fowler v. Lanning). They are simply alternative ways of describing the same factual situation.
In the Judgment under appeal, Mr Justice Elwes has held that the Law Reform (Limitation of Actions) Act 1954 has, by Section 2(1) created an important difference in the remedy to which B. is entitled in the factual situation postulated according to whether he chooses to describe it as negligence or as trespass to the person. If he selects the former description, the limitation period is three years; if he selects the latter, the limitation period is six years. The terms of the sub-section have already been cited, and I need not repeat them.
The factual situation upon which the Plaintiff’s action was founded is set out in the Statement of Claim. It was that the Defendant, by failing to exercise reasonable care (of which failure particulars were given), drove his motor-car over the Plaintiff’s legs and so inflicted upon her direct personal injuries in respect of which the Plaintiff claimed damages. That factual situation was the Plaintiff’s cause of action. It was the cause of action “for” which the Plaintiff claimed damages in respect of the personal injuries which she sustained. That cause of action or factual situation falls within the description of the tort of “negligence” and an action founded on it, that is, brought to obtain the remedy to which the existence of that factual situation entitles the Plaintiff, falls within the description of an “action for negligence”. The description “negligence” was in fact used by the Plaintiff’s pleader; but this cannot be decisive, for we are concerned not with the description applied by the pleader to the factual situation and the action founded on it, but with the description applied to it by Parliament in the enactment to be construed. It is true that that factual situation also falls within the description of the tort of “trespass to the person”. But that, as I have endeavoured to show, does not mean that there are two causes of action. It merely means that there are two apt descriptions of the same cause of action. It does not cease to be the tort of “negligence” because it can also be called by another name. An action founded upon it is none the less an “action for negligence” because it can also be called an “action for trespass to the person”.
It is not, I think, necessary to consider whether there is to-day any respect in which a cause of action for unintentional as distinct from intentional “trespass to the person” is not equally aptly described as a cause of action for “negligence”. The difference stressed by Mr Justice Elwes that actual damage caused by failure to exercise reasonable care forms an essential element in the cause of action for “negligence”, but does not in the cause of action in “trespass to the person”, is, I think, more apparent than real when the trespass is unintentional; for, since the duty of care, whether in negligence or in unintentional trespass to the person, is to take reasonable care to avoid causing actual damage to one’s neighbour, there is no breach of the duty unless actual damage is caused. Actual damage is thus a necessary ingredient in unintentional as distinct from intentional trespass to the person. But whether this be so or not, the sub-section which falls to be construed is concerned only with actions in which actual damage in the form of personal injuries has in fact been sustained by the plaintiff. Where this factor is present, every factual situation which falls within the description “trespass to the person” is, where the trespass is unintentional, equally aptly described as negligence.
I am therefore of opinion that the facts pleaded in the present action make it an “action fop negligence … where the damages claimed by the plaintiff for the negligence … consist of or include damages in respect of personal injuries to” the plaintiff, within the meaning of the sub-section, and that the limitation period was three years.
In this respect I agree with the Judgment of Mr Justice Adam in the only direct authority on this point, the Victorian case of Kruber v. Grzesiak (1963 2 V.L.R,, 621). To his lucid reasoning I am much indebted. This is yet another illustration of the assistance to be obtained from the citation of relevant decisions of Courts in other parts of the Commonwealth, and I am particularly grateful to Counsel for the Appellant and those instructing him for drawing our attention to this case. But I agree with my brethren and with Mr Justice Adam that this action also falls within the words “action .. for breach of duty (whether the duty exists by virtue of a contract or of a provision made by or under a statute or independently of any contract or any such provision)”. I say “also falls”, for in the absence of the word “other” before “breach of duty” that expression as explained by the words in parenthesis is itself wide enough to include “negligence” and “nuisance”.
In their ordinary meaning, the words “breach of duty” MS so explained are wide enough to cover any cause of action which gives rise to a claim for damages for personal injuries, as Lord Greene in Billings v. Reed said of very similar words in the Personal Injury (Emergency Provisions) Act, 1939. Why should one give them a narrower and strained construction? The Act is a limitation Act; it relates only to procedure. It does not divest any person of rights recognised by law; it limits the period within which a person can obtain a remedy from the Courts for infringement of them. The mischief against which all limitation Acts are directed is delay in commencing legal proceedings; for delay may lead to injustice, particularly where the ascertainment of the relevant facts depends upon oral testimony. This mischief, the only mischief against which the section is directed, is the same in all actions in which damages are claimed in respect of personal injuries. It is independent of any category into which the cause of action which gives rise to such a claim falls. I see no reason for approaching the construction of an enactment of this character with any other presumption than that Parliament used the words it selected in their ordinary meaning and meant what it chose to say.
Counsel for the Plaintiff has, however, submitted that an action for trespass to the person is not an action for “breach of duty” at all. It is, he contends, an action for the infringement by the Defendant of a general right of the Plaintiff; there is no concomitant duty upon the Defendant to avoid infringing the Plaintiff’s general right. This argument or something like it, for I do not find it easy to formulate, found favour with the learned Judge. He drew a distinction between what he described as a “particular duty” owed by a particular defendant to a particular plaintiff which he said, no doubt with Bowhill v. Young in mind, was an essential element in the cause of action in negligence, and a “general duty” not to inflict injury on anyone; but to describe the latter, which is merely the obverse of the Plaintiff’s cause of action in trespass to the person, as a “duty” was, he thought, not to use the language of precision as known to the law.
I would observe in passing that a duty not to inflict direct injury to the person of anyone is by its very nature owed only to those who are within range – a narrower circle of Atkinsonian neighbours than in the tort of negligence. But in any event this distinction between a duty which is “particular” because it is owed to a particular plaintiff and a duty which is “general” because the duty owed to the plaintiff is similar to that owed to everyone else is fallacious in relation to civil actions. A. has a cause of action against B. for any infringement by B. of a right of A. which is recognised by law. Ubi jus,ibi remedium. B. has a corresponding duty owed to A. not to infringe any right of A. which is recognised by law. A. has no cause of action against B. for an infringement by B. of a right of C. which is recognised by law. B. has no duty owed to A. not to infringe a right of C., although he has a duty owed to C. not to do so. The number of other people to whom B. owes a similar duty cannot affect the nature of the duty which he owes to A. which is simply a duty not to infringe any of A.’s rights. In the context of civil actions a duty is merely the obverse of a right recognised by law. The fact that in the earlier cases the emphasis tended to be upon the right and in more modern cases the emphasis tends to be upon the duty merely reflects changing fashions in approach to juristic as to other social problems, and must not be allowed to disguise the fact that right and duty are but two sides of a single medal.
An alternative way of narrowing the construction of these wide general words which I think was also present to the mind of the learned Judge was to apply the principle of noscitur a sociis and, because the cause of action in both negligence and nuisance involves the infliction of actual damage as an essential element, to construe “breach of duty” as limited to breaches of duty giving rise to causes of action in which the infliction of actual damage is an essential element. The maxim noscitur a sociis is always a treacherous one unless you know the societas to which the socii belong. But it is clear that “breach of duty” cannot be restricted to those giving rise to causes of action in which the infliction of actual damage is an essential element, for the words in parenthesis expressly extend to a duty which exists by virtue of a contract and the infliction of actual damage is not an essential element in an action for breach of contractual duty.
Really, the only argument for cutting down the plain and wide meaning of the words “breach of duty” is that to do so renders the inclusion of the specific torts of negligence and nuisance unnecessary. But economy of language is not invariably the badge of parliamentary draftsmanship. Negligence and nuisance are the commonest causes of action which give rise to claims for damages in respect of personal injuries. To mention them specifically without adding the word “other” before “breach of duty” is not in itself sufficient to give rise to any inference that the wide general words were not intended to cover all causes of action which give rise to claims for damages in respect of personal injuries; particularly when the same combination of expressions in a similar context had already been given a very wide interpretation by the Court of Appeal.
On these grounds I would hold that the limitation period for this action was three years and would allow the appeal.
Order:- Appeal allowed; Judgment entered for the Defendant, with costs in the Court of Appeal and in the Court below, the Order for costs not to be executed except on further application to the Court of Appeal. Payment out to the Defendant of the £575 in Court. Legal Aid taxation on behalf of the Plaintiff. Leave to appeal to the House of Lords refused.