Dunlea v An Bord Pleanala & Ors (Approved)

Factual and Procedural Background

This opinion concerns an application by the Second, Third, and Fourth Named Respondents ("the State Respondents") seeking to dismiss the reliefs claimed by the Applicant for want of prosecution due to inordinate and inexcusable delay. The underlying proceedings relate to the Applicant's challenge to a decision of a planning appeals board ("the Board") dated 25 April 2019, which allowed an appeal against an earlier decision by a county council granting planning permission to the Applicant for construction works at a location in County Kerry.

The Applicant initiated judicial review proceedings with a Statement of Grounds and verifying Affidavit dated 23 May 2019. Leave to apply for judicial review was granted on 27 May 2019. The Board and the State filed their Statements of Opposition in November 2019 and February 2021 respectively. Despite multiple efforts by the State Respondents to engage with the Applicant and her solicitors over a period exceeding three years, including service of notifications and correspondence regarding the dismissal application, there has been no response or appearance by or on behalf of the Applicant since the initial stages of the proceedings.

Legal Issues Presented

1. Whether there has been inordinate delay in prosecuting the Applicant's claims.
2. Whether any such delay is excusable.
3. If there is inordinate and inexcusable delay, whether the balance of justice favours dismissing the case or allowing it to proceed.

Arguments of the Parties

State Respondents' Arguments

• They seek dismissal of the Applicant's claims for want of prosecution due to inordinate and inexcusable delay pursuant to the High Court's inherent jurisdiction and/or Order 122, rule 11 of the Rules of the Superior Courts 1986.
• They argue that the Applicant has failed to take any step in the proceedings for over three years despite repeated efforts to engage her and her solicitors.
• They contend that the delay is inexcusable in the legal sense established by precedent and that it prejudices the public law measures challenged, which enjoy a presumption of validity.
• They rely on established legal principles from the Supreme Court and Court of Appeal regarding delay and dismissal for want of prosecution, including the cases Primor plc v Stokes Kennedy Crowley, Cave Projects Ltd v Kelly, Gibbons v N6 (Construction) Ltd, and Nowak v Intesa Sanpaolo Life DAC.
• They submit that the balance of justice favours dismissal given the Applicant's failure to prosecute and the public interest in timely administration of justice.

The opinion does not contain a detailed account of the Applicant's legal arguments.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Primor plc v Stokes Kennedy Crowley [1996] 2 I.R. 459	Principles governing dismissal for want of prosecution due to inordinate and inexcusable delay.	Established the three-step test: whether delay is inordinate, whether it is excusable, and balancing justice to decide dismissal.
Cave Projects Ltd v Kelly [2022] IECA 245	Application of Primor principles in recent jurisprudence.	Reinforced the approach to delay and dismissal in judicial review proceedings.
Gibbons v N6 (Construction) Ltd [2021] IEHC 138; upheld [2022] IECA 112	Application of delay principles with emphasis on Article 6 ECHR requirement for timely determination.	Supported a stricter approach to delay considering constitutional and Convention imperatives.
Nowak v Intesa Sanpaolo Life DAC [2024] IEHC 263	Recent application of delay and dismissal principles.	Confirmed ongoing relevance of Primor test and inherent jurisdiction to dismiss for delay.
North Westmeath Turbine Action Group & Ors v An Bord Pleanála & Ors [2022] IECA 126	Consideration of procedural rules and inherent jurisdiction in judicial review context.	Clarified limits of procedural rules applicable and endorsed use of inherent jurisdiction for dismissal.
Coughlan v Stokes [2024] IEHC 133	Delay deemed inexcusable where no explanation is provided for prolonged inactivity.	Applied to find Applicant's failure to prosecute without explanation inexcusable.

Court's Reasoning and Analysis

The court applied the well-established three-step test from Primor plc v Stokes Kennedy Crowley to assess the State Respondents' application to dismiss for want of prosecution. The first step was to determine whether there had been inordinate delay; the court found that the Applicant had not taken any step in the proceedings for over three years, which constituted inordinate delay.

Secondly, the court considered whether this delay was excusable. Given the absence of any explanation or response from the Applicant or her solicitors despite repeated efforts by the State Respondents to engage them, the delay was deemed inexcusable.

Finally, the court balanced the interests of justice. It emphasized the constitutional and Convention obligations to ensure civil rights are determined within a reasonable time and the public interest in the timely administration of justice. The court noted that the public law measures challenged enjoy a presumption of validity and that the failure to prosecute undermines this and causes prejudice to the State Respondents. The balance of justice thus favoured dismissal.

The court also addressed procedural considerations, noting the applicability of the inherent jurisdiction to dismiss for want of prosecution and expressing caution about the direct application of certain procedural rules in judicial review contexts, preferring to rely on inherent jurisdiction.

Holding and Implications

The court's final decision is to DISMISS the Applicant's claims in the application for judicial review as against all of the State Respondents pursuant to the exercise of its inherent jurisdiction for want of prosecution due to inordinate and inexcusable delay.

The direct effect of this decision is the termination of the Applicant's judicial review claims against the State Respondents. No broader legal precedent or substantive determination on the merits of the underlying challenge to the planning decision or related public law measures was made. The ruling underscores the importance of prosecuting judicial review proceedings with reasonable expedition to protect the administration of justice and the public interest.