Summary of High Court (Planning & Environment) Judgment

Factual and Procedural Background

The Plaintiffs (Company A, Company B, Company C and Company D) are the owners of lands recorded as Folio [Number] located adjacent to a recognised historic house in The County. The Plaintiffs erected green metal palisade gates across a route known in the record as The Road. The gates were erected without planning permission.

The Plaintiffs had separately sought planning permission for a development package that included alterations to The Road (including widening and a footpath), retention of a temporary carpark (with some elements permitted and others refused by the local planning authority) and the erection/retention of gates. The local authority issued a split decision: it granted permission for retention of the temporary carpark (subject to a modification) and refused permission for the road-widening, the gates and other elements.

The Plaintiffs issued plenary proceedings on 30 May 2025 seeking, among other reliefs: (a) a declaration that there is no public right of way over the Plaintiffs' lands (the negative declaration); (b) injunctive relief restraining persons with notice from entering the lands without consent; and (c) damages for trespass, slander of title and wrongful interference with property rights. A Statement of Claim was delivered on 4 June 2025 and a draft amended statement of claim was served but not yet filed with leave.

The Defendants comprise two individual directors (referred to herein as Defendant 1 and Defendant 2) and a company (Company E) incorporated as a vehicle for litigation. Prior to incorporation, Defendant 1 and Defendant 2 were members of an unincorporated community group. Company E had separately commenced proceedings under section 160 of the Planning and Development Act 2000 in respect of the gates; those section 160 proceedings had not been heard or determined at the time of this judgment. The section 160 proceedings rely principally on Article 9(1)(a)(x) of the Planning and Development Regulations 2001 and do not, according to the record, advance Article 9(1)(a)(ix).

The Defendants applied to strike out the Plaintiffs' plenary proceedings under Order 19 rule 28 of the Rules of the Superior Courts and, alternatively, under the Court's inherent jurisdiction. The strike-out application was grounded on an affidavit of the Defendants' solicitor (Attorney Brady). The Defendants accepted that striking out is a remedy to be used sparingly.

Judgment was delivered by Judge Farrell on 15 September 2025. The proceedings were retained on the court list for a further hearing date on 13 October 2025 for any consequential applications.

Legal Issues Presented

1. Whether the plenary proceedings should be struck out under Order 19 rule 28 or pursuant to the inherent jurisdiction of the High Court on the grounds that they disclose no reasonable cause of action, amount to an abuse of process, are bound to fail, or have no reasonable chance of succeeding.
2. Whether the Plaintiffs are entitled to a negative declaration that there is no public right of way over their lands and, relatedly, whether a negative declaration is an appropriate remedy in the circumstances described.
3. Whether the plenary proceedings constitute an abuse of process or a SLAPP (strategic lawsuit against public participation) intended to impede Company E's access to the courts in its section 160 proceedings.
4. Whether the absence of a pre-action letter (or the form of any pre-action communication) justifies striking out the proceedings or otherwise demonstrates that the proceedings were not brought bona fide.

Arguments of the Parties

Defendants' Arguments

• The plenary proceedings disclose no reasonable cause of action and are bound to fail (Order 19 r.28 grounds): the Defendants argued there is no evidence to sustain the Plaintiffs' claims and that the negative declaration is not appropriate because the Defendants do not, in the section 160 proceedings, assert that a public right of way exists.
• The proceedings are an abuse of process and were instituted for an improper collateral purpose — namely, to prevent or impede Company E from pursuing its section 160 proceedings. This, the Defendants said, undermines the third party's access to the courts and may have implications for protection of EU/environmental law rights.
• The proceedings are said to display indicia of SLAPP litigation and the court should therefore strike them out at an early stage; the Defendants relied on comparative jurisprudence and the Court's domestic rules on abuse of process.
• The Plaintiffs did not send an appropriate pre-action letter to certain Defendants (in particular the individual Defendants) before issuing proceedings; the Defendants argued the absence of such a letter supports a conclusion that the claim is unstateable or not bona fide.

Plaintiffs' Arguments

• The Plaintiffs maintain they have a legitimate interest in clearing title and protecting their property rights and so brought the plenary proceedings to obtain a negative declaration and other remedies to prevent trespass and slander of title.
• The Plaintiffs relied on contemporaneous statements and publications by the Defendants (including statements on Company E's website and submissions to the planning authority) asserting the existence of a public right of way; those statements, together with alleged and pleaded trespasses and damage, support a stateable case for relief.
• The Plaintiffs argued a negative declaration is an appropriate preventative remedy in the circumstances where the Defendants have asserted the existence of a public right of way and where those assertions have ongoing effects on the Plaintiffs' title, security and commercial position.
• On the pre-action letter point, the Plaintiffs relied on earlier correspondence (addressed to Company E's solicitors) and on authority indicating that absence of a pre-action letter is not determinative of lack of bona fides; in any event, the timing and progression of the proceedings were consistent with bona fide litigation.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Dennehy v. An Bord Pleanála & Ors [2020] IEHC 239	Illustrates that a planning authority must have regard to prior court findings about absence of a public right of way and cannot treat unlawful public use as supporting non-exempt development where precedent court findings exist.	The Plaintiffs relied on Dennehy as a basis for seeking a declaration; the Court considered the Plaintiffs' concern that Company E sought to distinguish Dennehy in its section 160 proceedings and accepted that the Plaintiffs' initiation of plenary proceedings was in part motivated by that concern.
O'Malley v. National Standards Authority of Ireland [2024] IEHC 500	Describes the standard for strike-out applications — the court must be confident there is no credible basis for the plaintiff to establish necessary facts at trial.	The judgment was cited to emphasise that strike-out requires confidence that the plaintiff cannot possibly succeed; the Court applied that standard in refusing the strike-out application.
IBRC v. Purcell [2016] 2 IR 83	Summarises principles for striking out proceedings including that the jurisdiction must be exercised sparingly; court may consider affidavits and must treat plaintiff's case at its high-water mark.	The Court adopted and relied on the summary of principles in assessing whether the Plaintiffs' case was stateable and whether dismissal was appropriate.
Lopes v. Minister for Justice Equality and Law Reform [2014] IESC 21	Referenced by analogy for the proposition that cases can take unexpected factual turns and the court should not strike out merely because a case appears weak.	Used to reinforce the cautious approach to strike-out applications and the need to allow contested factual matters to be tested at trial.
Salthill Properties Ltd v. Royal Bank of Scotland [2009] IEHC 207	Places the burden on the defendant to show that the plaintiff's claim is bound to fail.	The Court applied the principle that the Defendants bore the onus of proving no reasonable prospect of success.
Keohane v. Hynes [2014] IESC 66 and Moylist Construction Ltd v. Doheny [2016] IESC 9	Explain limits on resolving credibility and complex factual issues on strike-out applications; credibility is for trial.	The Court observed that credibility issues and contested evidential disputes should be resolved at trial and therefore declined to resolve such matters on the strike-out application.
Jodifern Ltd v. Fitzgerald [1999] IESC 88	Indicates the inherent jurisdiction to strike out may derive from the jurisdiction to prevent abuse of process.	The Court considered the inherent jurisdiction as part of the framework for deciding the Defendants' application but found no clear abuse of process.
Sun Fat Chan v. Osseous Ltd [1992] 1 I.R. 425	Emphasises that the High Court should be slow to entertain strike-out applications; the jurisdiction to strike out is to be exercised sparingly.	The Court applied the cautionary approach and declined to strike out where there was a real dispute in evidence.
Ciara Quinn & Ors v. Irish Bank Resolution Corporation Ltd & Ors [2015] IESC 29	Explains rationale for negative declarations: they protect a party from having a claim hanging over it and are not a cause of action themselves; negative declarations are granted where just and equitable.	The Court considered Ciara Quinn in analysing whether a negative declaration was a proper remedy here and concluded the issue of utility and discretion could not be resolved on strike-out; the Plaintiffs might have a stateable claim for a negative declaration.
BNP Paribas SA v Trattamento Rifiuti Metropolitani SPA [2020] EWHC 2436 (Comm)	Summarises that the touchstone for declaratory relief is utility and that a real and present dispute between the parties must exist.	The Court referred to the BNP Paribas principles in considering the utility of a negative declaration but held that utility and discretionary considerations were matters for trial.
Rolls Royce v Unite the Union [2010] 1 WLR 318	Used as authority for considerations relevant to granting declaratory relief and utility analysis.	Referred to as part of the utility analysis for declaratory relief; the Court noted these principles but declined to dispose of the issue on strike-out grounds.
Glenveagh Homes Ltd v. Lynch & Anor [2024] IEHC 157	Identifies SLAPP indicia and states that SLAPP lawsuits designed to silence critics are an abuse of process and should be struck out in clear cases.	The Court considered the SLAPP indicators in Glenveagh and found some indicia present but concluded this was not a clear case of SLAPP warranting dismissal.
Atlas GP v. Kelly [2022] IEHC 443	Discusses domestic principles for striking out proceedings alleged to be abusive or SLAPP-like.	The Defendants relied on Atlas GP; the Court accepted the need to take a holistic view but concluded the evidence did not establish abuse sufficient for strike-out.
Burke v. Anglo Irish Bank Corporation plc & Anor [2011] IEHC 478	Referenced in relation to principles about evidence placed before the court and when a strike-out application should be refused.	Used to support the proposition that if there is affidavit evidence which, if accepted, might lead to success, strike-out should not follow.
Maria Dolores Fernandez Sanchez v Santiago Capital DAC & Ors [2023] IEHC 681	Discusses that omission of a pre-action letter, though undesirable, does not in isolation establish lack of bona fides; it is a factor to be assessed with other circumstances.	The Court relied on this authority to reject the submission that absence of a pre-action letter alone required dismissal of the proceedings.

Court's Reasoning and Analysis

The Court proceeded by reference to the statutory rule (Order 19 r.28 RSC) and the established jurisprudence concerning strike-out and the Court's inherent jurisdiction. The controlling standard, as extracted from the authorities, requires the Court to be confident that there is no credible basis on which the plaintiff might, at trial, establish facts necessary for success; the jurisdiction is to be exercised sparingly and only in clear cases.

On the negative declaration issue, the Court analysed the role and rationale of negative declarations (drawing on Ciara Quinn and related authorities). The Court accepted that negative declarations are not a cause of action in themselves but can be an appropriate preventative remedy where justice and utility require it. The Court found that whether a negative declaration is appropriate in the present circumstances is a discretionary and fact-sensitive question which should not be determined summarily on a strike-out application. The Court noted that Defendants had made various public statements and that Company E's website still contained statements asserting a public right of way; those statements had not been refuted in the affidavit evidence before the court.

The Court carefully examined whether the allegations and evidential material established that the plenary proceedings were an abuse of process or SLAPP litigation. Although some indicia of SLAPP-style litigation were present (e.g., features of the parties and correspondence), the Court concluded this was not a clear case of litigation brought to silence public participation. The Court emphasised the need to take a holistic view and to avoid prematurely resolving factual disputes or credibility issues that are properly for trial.

Concerning the absence of a pre-action letter, the Court accepted that such a letter is good practice but held that its absence does not, in itself, prove lack of bona fides or require dismissal. The Court considered the Plaintiffs' prior correspondence and the speed with which the proceedings were issued and observed that the absence of a pre-action letter was not determinative in the circumstances of this case.

The Court applied the burden allocation in strike-out applications: the Defendants bear the burden of proving that the Plaintiffs' case is bound to fail. The Court found that the Defendants had not discharged that burden. There remained contested but non-refuted evidence (including contemporaneous public statements, alleged trespasses and damage, and affidavit evidence from the Plaintiffs) which, if accepted at trial, might lead to the Plaintiffs' success on some or all claims. Thus, under the high-water mark approach to pleadings, the Court could not be confident that the Plaintiffs' case could not succeed.

Holding and Implications

APPLICATION TO STRIKE OUT REFUSED

Holding: The Court refused the Defendants' application to dismiss or strike out the plenary proceedings under Order 19 rule 28 and pursuant to the Court's inherent jurisdiction. The Court concluded that the Defendants had not shown that the Plaintiffs' claims disclose no reasonable cause of action, are bound to fail, or amount to an abuse of process requiring dismissal.

Implications:

• The plenary proceedings will continue to trial (or further interlocutory steps) and are listed for a further mention on 13 October 2025 for any consequential orders.
• Both the Plaintiffs (Company A–D) and the Defendants (Defendant 1, Defendant 2 and Company E) retain their rights of access to the courts to pursue their competing claims — including the section 160 proceedings and the plenary claims — subject to the usual procedural rules.
• The Court did not determine the substantive merits of the negative declaration, the trespass, slander of title, or damage claims; those matters remain for trial where factual disputes, credibility and legal questions will be resolved with the benefit of discovery and cross-examination.
• The judgment does not purport to establish new, general precedent beyond the application of established principles on strike-out jurisdiction; rather, it applies established tests (cited authorities) and emphasises that dismissal before trial is appropriate only in clear cases.

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Judicial Officer: Judge Farrell

Hearing / Judgment Date: Judgment delivered 15 September 2025; matter listed 13 October 2025 for consequential applications.

Note on anonymisation: Parties and other identifying details in this summary have been replaced by generic placeholders (e.g., "Company A", "Company E", "Defendant 1") in accordance with the summary instructions; the content otherwise reflects only information contained in the provided opinion.