Wednesday 22 November 2017

Supreme Court defers decision over costs in Lissadell case

Lissadell House
Lissadell House

Sligo County Council has asked the Supreme Court to reconsider one particular issue in its judgment which had rejected claims by the council of public rights of way over certain routes through the historic Lissadell estate in Co Sligo.

While describing as "most unsatisfactory" that the request was first made in written legal submissions sent to the Supreme Court last Friday in response to the Supreme Court's November 2013 judgment, the Chief Justice agreed today to defer the court's decision on who should pay the multi-million Euro costs of the case while it considers the council's request.

The five judge court will reconvene at a later unspecified date to give its decision on the Council's request and to address the other issues, including liability for the estimated €7m costs of the case.

Eoin McCullough SC, for the Lissadell owners, barristers Edward Walsh and Constance Cassidy, said the issue being raised by the Council was "utterly irrelevant", the Council's application was "irregular" and the court should find there was no basis to it.

John Rogers SC, for the Council, said he wished to apologise that the matter had been raised at a late stage but the Council  considered the matter was very important and the court should defer its decision on costs and other issues to consider the Council's submissions. He appreciated it was a "delicate" matter but his side was concerned about it.

The issue relates to a finding by the Supreme Court that there was no evidence that one of the four routes at the centre of the legal action, the Farm Avenue route through the estate, existed before it appeared on the 1885 Ordnance Survey map. Given that finding, the Supreme Court had ruled the High Court erred in finding that route was dedicated for public use between 1857-1861.

Mr Rogers said the Supreme Court's finding related to when Farm Avenue came into existence was contradicted by certain evidence which had been put before the High Court and Supreme Court, including evidence from Mr Walsh concerning farm buildings.

The Supreme Court, when writing its judgment, appeared to have proceeded on the basis there was no such evidence but there was and he felt a responsibility both to his client, the Council, and to the court, to say that, Mr Rogers said.

Mr McCullough said there was a distinction between the Farm Avenue route and farm buildings and the evidence the Council wanted to bring in concerned farm buildings and was "utterly irrelevant".

Earlier, in exchanges between Mr Rogers and the court, Mr Justice Nial Fennelly said he was involved in writing the court's unanimous judgment and he was "astonished" at some of the points made in the Council's submissions, including that there was an omission related to the exact delineation of a coastal route through the estate.

The Chief Justice, Ms Justice Susan Denham, having discussed the Council's application with her four colleagues, said the raising of this issue at this late stage was most unsatisfactory but the court would adjourn to consider the Council's submissions.

Lissadell is the former home of the Gore-Booth family and is particularly linked with Constance Gore-Booth, later Countess Markievicz, who became the first woman in the world to hold a seat in Cabinet after her appointment as Minister for Labour in the First Dail.

The owners bought the estate and 410 acres for €4m in 2003 and spent €9.5m restoring it. When they learned in 2004 that public rights of way were being asserted over routes in the estate, they locked the gates on the main avenue, resulting in a campaign to ensure public rights of way at Lissadell.

After the Council in December 2008 resolved to amend the county development plan to provide for preservation of public rights of way over four routes, the owners took High Court proceedings. After a 58 day hearing, Mr Justice Bryan McMahon dismissed their claims of no public rights of way but they successfully appealed to the Supreme Court.

The case concerned four routes through the estate but the Supreme Court found a public right of way existed only over part of one route, a section of a coastal route passing over the Lissadell lands from Bunbrenóige Bridge used mainly for access to the sea.

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