Proceedings against Killiney residents used as ‘weapon’ to deny justice, court hears

A developer’s proceedings against eight south Co Dublin residents are “being used as a weapon” to deny them access to justice, the High Court has heard.

The Killiney locals, who are pursuing a separate judicial review action seeking to quash permission granted for 255 residential units to Atlas GP Ltd, a subsidiary of Pat Crean’s Marlet Property Group, claim Atlas’s case is part of a Slapp (Strategic Litigation Against Public Participation) campaign. Those claims are denied.

Moving a motion aimed at having the developer’s case struck out on the basis it is an abuse of process, Stephen Dodd SC, instructed by Eoin Brady of FP Logue Solicitors, said Atlas’s action was “being used as a weapon” and was intended to “interfere” with his clients’ judicial review proceedings.

Mr Dodd said the Irish courts have not addressed the issue of Slapps in any specific way.

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The proceedings against all eight residents alleging a breach of the medieval doctrine of champerty and maintenance (aimed at preventing disinterested parties from involving themselves in litigation) were “clearly designed to intimidate” them into dropping their planning permission challenge, said Mr Dodd.

Champerty, he said, is only relevant where a party is seeking damages and this is not the case in a judicial review of a planning decision. Maintenance, which refers to an unconnected third-party, does not apply either, said Mr Dodd, as people have an interest in developments in their local area.

He submitted that the alleged breach of champerty has been “inferred” by Atlas and is “unsustainable” on the evidence presented.

The development firm is seeking an injunction restraining the residents from taking any steps to pursue their action. It also wants damages and a declaration that the judicial review is being funded by third parties with no legitimate interest in the proceedings, contrary to law.

Withdrawing

Paul McGarry SC, instructed by Leman Solicitors, for Atlas, told the court on Thursday his client was withdrawing its motion seeking an initial injunction that would remain in place up until the hearing of its substantial proceedings.

Atlas said it has brought the proceedings after becoming aware last September of a leaflet that it claims was widely circulated in the local community. It said this was done to motivate third parties to fund the legal costs of the challenge against the grant of planning permission.

In another action against all eight, which stands adjourned, Atlas is seeking damages and other orders over alleged defamation of the firm in the leaflet. Its third case, against two of the eight, alleges a restrictive covenant of November 2000 prevents those two from challenging the permission and it wants damages over alleged breach of the covenant.

Atlas maintains its three High Court actions against some or all of the eight residents are legitimate and have been taken for various reasons, including to protect its right to its good name.

The State was joined as a notice party to the residents’ strike-out application in light of its obligations under the Aarhus Convention on public participation in decision making and access to justice in environmental matters.

Last month, a High Court judge dismissed an application by Atlas to set aside his earlier decision allowing the residents, who live on Church Road and Watson Road, to pursue their judicial review.

The case before Ms Justice Emily Egan continues on Friday.