Non‑Opposition Is Not Concession: Negative Declarations, SLAPP Allegations and the ‘Clear Case’ Strike‑Out Threshold under Order 19 rule 28

Introduction

This High Court decision, Celio Properties Ltd & Ors v Fintan Monaghan & Ors [2025] IEHC 546 (Farrell J, 15 September 2025), arises from a planning and land-access dispute at Castletown, Celbridge, County Kildare, adjacent to Castletown House. The plaintiffs (landowners) erected gates across “Gay’s Avenue,” a route leading towards Castletown House. A related planning enforcement application under section 160 of the Planning and Development Act 2000 was brought by the third defendant (Save Castletown Committee CLG), contending the gates were unauthorised (not exempted development) by reference to Article 9(1)(a)(x) of the Planning and Development Regulations 2001.

In the present plenary proceedings, the plaintiffs seek: (i) a negative declaration that no public right of way exists over their lands; (ii) injunctive restraint against entry without consent; and (iii) damages for trespass, slander of title and wrongful interference with property rights. The defendants applied to strike out the proceedings under Order 19 rule 28 RSC and/or the Court’s inherent jurisdiction, alleging absence of a reasonable cause of action, abuse of process (including that the case was a strategic lawsuit against public participation, or “SLAPP”), and the failure to send a pre‑action letter.

The judgment addresses three central issues:

When is a negative declaration available and utile, especially where a defendant says it is not “running” a public right of way argument elsewhere?
What is the operative strike‑out threshold post‑amendment to Order 19 rule 28, including the Court’s approach to factual disputes at an interlocutory stage?
How should courts evaluate SLAPP allegations and the absence of a pre‑action letter in gauging abuse of process?

Summary of the Judgment

Farrell J refused the strike‑out application. The Court held:

The well‑established principle that strike‑out is a sparingly used jurisdiction, available only in a clear case, remains applicable post‑amendment of Order 19 rule 28. Given the pleaded case and affidavit material, it could not be said that the plaintiffs’ claims are bound to fail or disclose no reasonable cause of action.
A negative declaration can, in principle, be sought alongside other reliefs. Whether granting such a declaration would be utile is a matter for trial; open correspondence that a defendant “is not litigating” a public right of way or will not oppose a declaration does not amount to a concession that moots the claim.
This was not a clear case of a SLAPP. While some indicia existed (e.g., the parties and surrounding context), the proceedings had a rational foundation and were not shown to be abusive. The absence of a pre‑action letter, though poor practice, was not determinative.

The defendants’ application to strike out was therefore refused, and the matter was listed for consequential orders on 13 October 2025.

Detailed Analysis

1. Precedents Cited and Their Influence

Order 19 rule 28 and the “bound to fail” standard

O’Malley v National Standards Authority of Ireland [2024] IEHC 500: Simons J observed that the distinction between the rule‑based and inherent jurisdictions to strike out has been eroded by amendment. The court must be confident there is no credible basis that facts necessary for success could be established at trial; weak cases that may be successfully defended are not struck out.
IBRC v Purcell [2016] 2 IR 83: Cregan J’s ten‑point synthesis remains applicable, including that strike‑out is exercised “sparingly and only in clear cases,” the plaintiff’s case must be taken at its “high water mark,” and the defendant bears the burden of showing the claim is bound to fail.
Barry v Buckley [1981] IR 306; Sun Fat Chan v Osseous [1992] 1 IR 425; Lac Minerals v Chevron Mineral (HC, 1993); Supermacs Ireland Ltd v Katesan (Naas) Ltd [2000] 4 IR 273; McCourt v Tiernan [2005] IEHC 268; Salthill Properties v RBS [2009] IEHC 207: These cases underpin the strike‑out sparing use, the “admitted facts” limitation, the high‑water‑mark approach, and the emphasis that pleadings should be allowed to be amended where possible.
Keohane v Hynes [2014] IESC 66; Moylist Construction Ltd v Doheny [2016] IESC 9: Appellate direction that courts should be slow to determine contested factual or complex legal issues on a strike‑out application; credibility is a trial issue.
Burke v Anglo Irish Bank [2011] IEHC 478; Jodifern Ltd v Fitzgerald [1999] IESC 88: The “abuse of process” foundation for strike‑out is reaffirmed; but again, a robust threshold must be met.

Negative declarations: utility and “real and present dispute”

Quinn v IBRC [2015] IESC 29: Clarke J explained that a negative declaration is not a cause of action; its rationale is to relieve a party of a claim hanging over them. The touchstone is whether it is just to allow a person against whom a claim may be made to obtain a judicial determination in advance.
BNP Paribas SA v Trattamento Rifiuti Metropolitani SPA [2020] EWHC 2436 (Comm) and Rolls Royce v Unite the Union [2010] 1 WLR 318: English authorities noted for the “utility” test and the requirement of a “real and present dispute.” Lack of concrete facts may counsel caution but is not per se determinative.

Planning enforcement, public use and Dennehy

Dennehy v An Bord Pleanála [2020] IEHC 239: Meenan J held that the Board must have regard to a Circuit Court finding that there was no public right of way; the Board may not rely on an unlawful public use to treat development as non‑exempted. Plaintiffs invoked Dennehy to justify seeking a declaration; defendants sought to distinguish it. Farrell J declined to pre‑adjudicate Dennehy’s application to the section 160 case on a strike‑out motion.

SLAPP allegations

Glenveagh Homes Ltd v Lynch [2024] IEHC 157 (Humphreys J): Identifies SLAPP lawsuits as a modern abuse; however, given the constitutional and ECHR/EU foundations of access to justice, strike‑out remains confined to clear cases.
Atlas GP v Kelly [2022] IEHC 443: Defendants relied on this to argue that domestic principles suffice to dismiss abusive claims even without invoking Aarhus; here, Farrell J assessed the case holistically and found it was not a clear SLAPP.
Maria Dolores Fernandez Sanchez v Santiago Capital DAC [2023] IEHC 681 (Kennedy J): Absence of a pre‑action letter can, among other factors, support a lack of bona fides; not determinative in isolation. Farrell J applied this nuance.

2. The Court’s Legal Reasoning

A. Strike‑out threshold: clear case or nothing

The Court reiterated that, whether under Order 19 rule 28 or inherent jurisdiction, striking out is reserved for clear cases where claims are bound to fail. The rule, as amended, encapsulates the traditional jurisprudence:

If there is any credible basis that facts might emerge at trial to support the claim, the case should proceed.
Contested factual issues—such as whether defendants publicly asserted a public right of way; whether statements caused trespass/damage; and whether access was “habitual”—cannot be resolved at strike‑out and belong at trial.

B. Negative declarations: “shield, not sword,” and the role of non‑opposition

The plaintiffs seek a declaration that no public right of way exists. Defendants argued there is no “real” dispute because, in the section 160 proceedings, they state they are not relying on a public right of way and, in correspondence, indicate they will not oppose a negative declaration. Farrell J rejected the notion that non‑opposition equals concession:

Public statements by defendants asserting a public right of way exist on record (including on the third defendant’s website). These give rise to a real, present dispute affecting title.
Even if the defendants do not rely on a public right of way in the section 160 case, that does not extinguish the utility of a declaration to clear title and prevent ongoing trespass or interference.
Whether a negative declaration is the most effective means of resolving the controversy (utility) is a discretionary assessment for trial, not for summary dismissal.
There is no rule that a negative declaration must be the only relief sought. Combining it with injunctive and damages claims is procedurally efficient.

The Court noted the internal tension in the defendants’ stance: stating an intention not to oppose a negative declaration while simultaneously seeking to strike out the proceedings as bound to fail. That contradiction reinforced the view that the claim could not be said to be hopeless.

C. Other reliefs: trespass, slander of title, wrongful interference

The plaintiffs adduced affidavit evidence of ongoing trespass, damage to gates and fencing, broken locks, crop damage, and business impacts (security and marketing). They attribute these harms at least in part to defendants’ public statements encouraging access. Defendants dispute aspects of this narrative. Given the factual conflicts, the Court held it could not conclude the claims are bound to fail; these are quintessential trial issues.

D. SLAPP allegations and abuse of process

Defendants contended the plenary proceedings were a tactical attempt to chill participation and impede the section 160 environmental enforcement case. Farrell J:

Accepted that some SLAPP indicators were present in the abstract but emphasised the need for a holistic evaluation and a clear case before striking out.
Found a rational basis for the plaintiffs’ suit: to clear title, address alleged ongoing trespass/damage, and respond to public assertions of a right of way.
Noted that the plaintiffs no longer insisted that the plenary action must precede the section 160 hearing, especially after defendants’ 30 June 2025 letter clarifying reliance on Article 9(1)(a)(x) rather than a public right of way.
Concluded this was not a clear SLAPP case and not an abuse of process.

E. Absence of a pre‑action letter

Although best practice, failure to send a pre‑action letter does not, without more, prove a lack of bona fides or warrant strike‑out. Here, correspondence existed (a January 2025 letter to the third defendant’s solicitors) warning of litigation if conduct persisted. In any event, the rapid progress of pleadings and the substantive issues raised meant the omission was not determinative.

F. Dennehy and the section 160 proceedings

The plaintiffs’ initial premise—that a negative declaration was needed to pre‑empt arguments in the section 160 case—lost force when defendants stated they did not rely on a public right of way there. Farrell J properly avoided using the strike‑out motion to decide the planning dispute’s merits or the precise application of Dennehy. The Court emphasised both sides’ equal right of access to the courts: the section 160 action may proceed on its pleaded basis; the plenary action likewise may proceed where stateable claims exist.

3. The Decision’s Impact

A. Negative declarations in property-access and planning disputes

This judgment consolidates Irish law on negative declarations in a practical way:

Where third parties have publicly asserted a public right of way over private land, a landowner’s negative declaration claim can be stateable even if those third parties later say they are not litigating that issue elsewhere or will not oppose relief.
The touchstone remains utility to the parties and justice in the case; “mootness by letter” is not a bar.
Courts will not force litigants to bring separate actions for declaratory and ancillary relief (injunctions, damages), favouring procedural economy.

B. Strike‑out practice post‑amendment to Order 19 rule 28

Farrell J’s application of the amended rule reaffirms:

The high bar for striking out claims that turn on contested facts or that may evolve through discovery and cross‑examination.
The “high water mark” approach remains: if the plaintiff’s case, taken at its strongest, could succeed, it should go forward.

C. SLAPP allegations and environmental participation

The judgment provides balanced guidance for future cases at the intersection of development and public participation:

Courts are receptive to early disposal of true SLAPPs but will insist on a clear, holistic evidential basis before curbing a litigant’s access to justice.
Community groups should recognise that public statements about rights over private land can generate justiciable disputes beyond the planning forum.
Developers/landowners should note that merely labelling a case a SLAPP will not immunise it from scrutiny; robust evidence of abuse is required.

D. Pre‑action letters

While the absence of a pre‑action letter may affect costs or weigh with the court where other abuse indicators exist, it is not, by itself, a gateway issue to jurisdiction or an automatic sign of bad faith.

E. Planning enforcement and Article 9(1)(a)(x)

Without determining the planning merits, the judgment underscores that section 160 proceedings can focus on whether “exempted development” is disapplied by Article 9(1)(a)(x) without requiring a court to adjudicate a public right of way, especially where the enforcement applicant says it relies on habitual public use rather than a legal right. Separately, landowners remain entitled to seek title‑clearing relief if public assertions of a right of way persist.

Complex Concepts Simplified

Negative declaration: A court order stating that a legal claim does not exist (e.g., “no public right of way” over specified lands). It is a shield to remove a cloud over a party’s legal position and is not a cause of action in itself. Courts look for utility and a real dispute.
Strike‑out vs. dismissal: Both are mechanisms to stop unstateable cases early. The court will only strike out in clear cases where the claim is bound to fail. Disputed facts and complex issues are ordinarily left for trial.
SLAPP: Strategic Lawsuit Against Public Participation. A claim brought primarily to silence critics or deter public engagement rather than vindicate a legal right. Courts will strike out true SLAPPs but are cautious not to curtail genuine claims.
Section 160 proceedings: A statutory enforcement route allowing a party (including third parties) to seek court orders against unauthorised development.
Exempted development and Article 9(1)(a)(x): Some minor works don’t require planning permission unless a restriction in Article 9 applies (for example, where works would interfere with public passage or access of a certain kind). Whether a restriction applies is a merits issue for the planning case.
Public right of way vs. habitual public use: A public right of way is a legal right. Habitual use describes factual patterns of public passage. The former depends on legal proof; the latter may be relevant to planning rules that disapply exemptions even absent a formal right.
Slander of title: A tort where a person publishes false statements disparaging another’s title to property, causing financial loss. It is distinct from personal defamation and requires proof of falsity, publication, malice (or improper motive), and special damage.

Practical Takeaways

Defendants’ “non‑opposition” in correspondence is not equivalent to a binding concession and will not necessarily render a declaratory claim moot.
If you publicly assert that a right of way exists over another’s land, you may face a title‑clearing action, even if you later narrow your planning case. Maintain consistency between public statements and litigation positions.
For strike‑out applicants: unless you can show the plaintiff’s claim is plainly hopeless on admitted facts, expect the matter to proceed to trial where affidavits raise factual disputes.
For plaintiffs contemplating a negative declaration: ensure there is a “real and present dispute” and articulable utility; contemporaneous public statements (websites, letters, submissions) can be vital evidence.
Pre‑action letters remain best practice and may influence costs and the court’s view of bona fides, but their absence is not automatically fatal.

Conclusion

Farrell J’s judgment makes three enduring contributions. First, it reaffirms the stringent “clear case” threshold for strike‑out under the amended Order 19 rule 28, ensuring that fact‑sensitive property and planning disputes ordinarily proceed to trial where credible disputes exist. Second, it clarifies the role and availability of negative declarations: non‑opposition in correspondence does not convert a live controversy into a non‑case; utility and justice drive the exercise of the declaratory jurisdiction. Third, it sets a measured approach to SLAPP allegations in planning contexts: courts are alert to abusive litigation but require a clear, holistic evidential basis before curtailing access to justice.

In the broader legal landscape, the decision will guide parties navigating parallel planning and property disputes: section 160 enforcement can proceed on its statutory footing without pre‑deciding property rights, while landowners may pursue declaratory and ancillary relief where public assertions cloud title and allegedly precipitate trespass or damage. The case is a reminder that Irish courts will protect both environmental participation and property rights, insisting on evidence and due process rather than prematurely terminating complex, contested claims.