'Unwise' language used in motion to strike out developer's case against Killiney residents

Atlas is seeking damages and a declaration that the case of eight residents is being funded by third-parties with no legitimate interest in the proceedings, contrary to law
'Unwise' language used in motion to strike out developer's case against Killiney residents

High Court reporters

Language describing a developer's actions against eight south Co Dublin planning objectors as threatening and intimidating is "unnecessary and unwise", the High Court has heard.

Atlas GP Ltd, a subsidiary of Pat Crean’s Marlet Property Group, has begun its response to a motion by the eight Killiney locals, asking the court to strike out its action against them on account of their belief it is an abuse of process and bound to fail.

The firm’s proceedings against the residents of Church Road and Watson Road allege a breach of the medieval doctrine of maintenance and champerty, which aims to prevent disinterested parties from getting involved in litigation.

It is seeking an injunction preventing the residents from taking further steps in their separate High Court challenge to An Bord Pleanála’s decision to grant planning permission to Atlas for a 255-unit residential development on Church Road.

The company also wants damages and a declaration that the case is being funded by third-parties with no legitimate interest in the proceedings, contrary to law.

Contributions

Atlas said it issued proceedings after becoming aware of a leaflet last September which sought contributions from local people to help raise €60,000 to fund litigation over the development.

The company alleges this flyer, published by 'Watson Killiney Residents Association', was widely circulated in the local area to encourage third-parties to fund the planning challenge.

On Friday, Atlas’s counsel, Paul McGarry SC, instructed by Leman Solicitors, said certain terminology used by the other side was “unnecessary and unwise” and “unknown” in legal authorities.

Mr McGarry said there had been much speculation from the defendants about the case against them being of a “so-called Slapp” (Strategic Litigation Against Public Participation) nature, but asked: “Where does the line get drawn between what is or isn’t a valid claim?”

The High Court was being asked by the other side to consider references to two other actions taken by Atlas against some or all the residents, but these are not before the court in this motion, he said.

He told Ms Justice Emily Egan that she should only strike out Atlas’s maintenance and champerty case if she was satisfied there was “no possibility” of it succeeding at trial.

The residents must show the developer does not have even a “prima facia” case and that it will not be able to acquire further evidence in the interim to prove engagement in the crime and tort of maintenance and champerty.

Atlas has issued proceedings against all eight residents over alleged defamation of the firm in the leaflet, which it says was authored by the defendants.

The company's third case, against two of the eight residents, alleges a restrictive covenant of November 2000 prevents those two from challenging the planning permission. Both cases stand adjourned.

Previously, Stephen Dodd SC, appearing with Eoin Brady of FP Logue Solicitors, for the residents, said the triplet of actions taken by Atlas are part of a Slapp campaign.

Mr Dodd told the court the proceedings were “clearly designed to intimidate” and were “being used as a weapon” to deny his clients access to justice. These claims are denied.

The State, which was joined as a notice party to the strike-out application, is due to make submissions on the relevance or otherwise to this case of the Aarhus Convention on public participation in decision-making and access to justice in environmental matters.

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