Supreme Court allows appeal on costs, reducing liability for councillors while holding Council ultimately responsible.

THE SUPREME COURT

268, 270, 271/03

509/04, 24/05 & 313/09

Hardiman, J.

Fennelly, J.

O’Donnell, J.

Between:

THOMAS CULLEN, PATRICK DORAN

AND NICHOLAS KELLY

Applicants/Appellants

-and-

THE WICKLOW COUNTY MANAGER

Respondent

-and-

AN BORD PLEANALA AND

ANDREW BYRNE

Notice Parties

Judgment delivered by O’Donnell, J. on the 30th day of July 2010.

It is difficult to credit, even now, that virtual civil war raged in Wicklow County Council in the summer in the year 2000 over a

proposal to convert a milking parlour into a pet crematorium at Redcross, County Wicklow. That dispute has followed a long, tortuous

and costly path to this Court, almost ten years later. The issue which was argued in this court over two days was the question of the

liability for the costs of this protracted litigation.

Section 4 of the City and County Management (Amendment) Act 1955

Nominally the issue in dispute was the question of the grant or refusal by the planning authority, Wicklow County Council, of the

planning permission sought. But the dispute which was ignited by the planning application also had its roots in a legal issue which

could be traced to what has been described as the unique form of local governance first introduced into Ireland in 1929 in Cork and

made of general application by the City and County Management Act 1940. It is reasonably well known that the 1940 Act grafted

onto the local government system created by the Local Government Act 1898, a system of management by a professional executive

headed by a county manager who could only be removed with the concurrence of the Minister for Local Government. The Act divided

the functions of a local authority into those reserved functions to be carried out by the elected members, and executive functions,

defined somewhat unhelpfully by s.17 of the 1940 Act, as “any other function to be performed by a local authority”. The division was

not however exclusive. Section 4 of the City and County Management (Amendment) Act 1955 permitted the elected representatives

to give a binding direction to the Manager as to the exercise by him of any executive function of the Council.

That somewhat controversial section is complex both as a matter of procedure and substance. It required that a valid resolution had

to be signed by three members and had to be considered at a special meeting which was on a specified day not less than seven days

after the notice. The motion had to be passed by a majority constituting at least one third of the total members of the council. If the

motion was returnable for the day of an ordinary meeting it was to be dealt with before any other business. The Manager was obliged

to comply only “if and when and so far as money for the purpose is or has been provided”. Subsection 9 of section 4 provided that

any section 4 resolution could not be general in nature. Any such purported resolution would be void. Subsection 10 provided for the

resolution by the Minister for Local Government of any dispute between the elected members and the Manager as to whether a

resolution contravened subsection 9. Similarly, subsection 11 prohibited section 4 resolutions from purporting to apply to the health

functions of a local authority and subsection 12 again provided that any dispute in this regard would be determined by resort to a

Minister of Central Government, in this case the Minister for Health.

It is apparent from the structure of s.4 that it was intended to be exercised only exceptionally. In the event the power was exercised

extensively and as Mr Justice O’Hanlon observed in P & F Sharpe and Grove Developments v Dublin City and County Manager and

Dublin County Council [1988] IR 701, excessively. While the initial division of local authority powers and functions into reserved and

executive functions was bound to give rise to some friction and dispute, the existence of s.4, and its statutory predecessor gave rise

to the potential for even more conflict between elected members and the executive of any local authority since it gave the elected

members the power to override the executive, but only if the very technical procedural provisions of the section were complied with.

It is to be noted that subsections 10 and 12 provided for a limited dispute resolution procedure, but in the event disputes have arisen

(such as that which occurred in this case) which did not fall within subsections 10 or 12.

In 1981 the Department of the Environment issued a guide to local government for councillors. In relation to s.4 it stated “while the

law must make a precise division of functions so that responsibility for their exercise may be clearly defined, it was not the purpose

of the management system that the elected members and the manager should act without reference to each other. Both classes of

functions are functions of the local authority and the fact that the executive ones are undertaken by the manager is intended to

provide the elected body with an experienced, whole time administrator for the prompt and efficient discharge of day to day

business without making an undue demand on the time of the elected members”. The sensible message of this advice is that the

system of local government required an element of cooperation between the appointed manager, and the elected councillors. This

message was it appears lost on Wicklow County Councillors, and especially the Appellants, during the summer of 2000.

A number of developments which might not have been anticipated either in 1940 or 1955 made the operation of s.4 even more

difficult. First, the functions of local authorities expanded both in range and complexity, and in particular the local authority obtained

extensive powers in the field of planning, a new and comprehensive system for which was established under the Local Government

(Planning and Development) Act 1963. The area of planning law has become very important, extensive, and highly technical. It is also

one of the most important aspects of their functions in which local authorities continue to have impact upon their areas. Use of the

blunt instrument of s.4 in the field of planning is both difficult, and controversial.

At the same time, one of the most distinctive developments of the law in the latter part of the 20th century in this jurisdiction has

been the significant expansion and development of the law of judicial review of administrative action. In the event, the fact that s.4

was directed to any “particular act matter or things specifically mentioned in the resolution … which the manager can lawfully do or

effect to be done …” (emphasis added) was pregnant with possibilities not all of them helpful or attractive, or necessarily anticipated

in 1955.

The leading case on the application of s.4 of the 1955 Act and indeed its application to the law on planning, was P & F Sharpe and

Grove Developments v Dublin City and County Manager and Dublin County Council. That case in itself was quite complex. There, the

applicant developer had applied for planning permission to develop sites for housing in Lucan, very close to the then dual carriageway

carrying traffic westwards out of Dublin. One of the provisions of the permissions precluded access direct to that road. The developer

having concluded that it would be difficult if not impossible to interest the public in houses without such access, applied for

permission for a slip road accessing the dual carriageway. The County Engineer and the roads department recommended refusal of

permission on safety grounds. However the Council passed a s.4 resolution directing the grant of permission. The County Manager

refused to comply with the resolution. He was advised by the law agent that it would not be lawful to grant permission in the face of

the reports from the County Engineer and the roads department. That advice had not been available to the elected representatives

at the time of the passage of the s.4 resolution. The County Manager accordingly refused permission, considering that he was not

bound by the s.4 resolution.

The developer sought certiorari to quash the Manager’s decision and mandamus to direct him to grant the permission sought in

accordance with the s.4 resolution. In the High Court, the developer succeeded. Mr Justice O’Hanlon held that the s.4 resolution

could validly be made in respect of planning decisions (something which up to then had been doubted), that although in the case of

an “obvious and patent illegality”, the manager would be not only entitled but “duty bound” to refuse to comply with any such

direction, and that neither the existence of the advice of the roads department and county engineer, nor the subsequent advice of

the law agent, rendered any such decision one of “patent illegality”. It was, as a matter of law, open to any deciding body to

disregard the expert advice given to it since otherwise the executive advisors would become the decision makers, rather than the

body upon which that duty was imposed by statute. In the event, he did not feel able to resolve the question whether the Council

was justified in departing from its expert advisers, considering that that was a matter of planning, properly to be determined on

appeal by An Bord Pleanála. Nor could he conclude that the permission would be unlawful, since that he considered would require a

demonstration that a traffic hazard in the nature of a public nuisance would be created if the permission was granted. The evidence

did not in his view allow him to make such a determination and accordingly he concluded that the County Manager was not entitled to

refuse to obey the s.4 resolution. However he considered that the County Council proper (rather than the County Manager) was the

appropriate Respondent, and accordingly joined the Council as Respondent. Furthermore he agreed that the Applicants had been

entitled to seek judicial review without pursuing the alternative remedy of an appeal to An Bord Pleanála since he considered that the

Board had no jurisdiction to consider the legality of the actions of the County Manager.

The decision was reversed in part by the Supreme Court. The Court agreed that s.4 resolutions could validly be passed in respect of a

planning matter. The Supreme Court held however that the decision of the councillors was invalid because the court considered that

the proposed development would contravene the development plan and accordingly that the special procedure under s.26(3)(c) of

the Local Government (Planning and Development) Act 1963 was required. On this somewhat narrow ground, the Appellant

succeeded. The case therefore illustrated at the very outset of this line of jurisprudence, the difficulty in predicting the view a court

would take of the legality of any s.4 resolution.

In respect of the reasonableness of the Council’s resolution, the court recorded that it was “accepted that, having regard to the

decision of this court in The State (Keegan) v The Stardust Compensation Tribunal [1986] IR 642, if the decision of the elected

members of the council to pass the resolution was “unreasonable” within the meaning laid down in the judgments in that case, that

the decision would be illegal and invalid and, consequently, need not be obeyed by the county manager”.

This apparently innocuous observation, born it appears of a concession and combined with the reference in the High Court to a

manager being “duty bound” to disobey a patently invalid motion, expanded significantly the potential bases upon which it might be

contended that a s.4 resolution was unlawful and has given rise to considerable litigation.

Sharpe finds echoes in this case, in other ways as well. It seems clear, that that case was the template for the procedure followed in

these proceedings of nominating the County Manager as the Respondent and seeking judicial review of the Council decision made by

the County Manager, before and in preference to, an appeal to An Bord Pleanála. While this was perhaps logical, it meant that there

was considerable pressure to act speedily in the interim period between the contested decision based on a s.4 resolution and the

expiry of time for the appeal to An Bord Pleanála.

The decision in Sharpe led to further complications. Whereas it appears from the judgment of O’Hanlon, J. in the High Court, that

hitherto there had been few if any examples of county managers refusing to comply with a s.4 resolution, the decision in Sharpe gave

rise to a number of such refusals and consequently cases in which the High Court was invited to determine whether the manager was

entitled to refuse to comply with the s.4 resolution on the grounds that the relevant resolution was invalid. Indeed, in the aftermath

of Sharpe, in the case of every s.4 resolution a manager was obliged to form a view as to the validity of the resolution, not merely by

reference to objective procedural criteria which might give rise to the patent illegality contemplated by O’Hanlon, J. but by reference

to a more contestable ground such as irrationality, or the closely related grounds of taking into account irrelevant matters or the

failure to take into account relevant considerations. When it is recalled that the court in Sharpe had emphasised that not only had

the planning process become even more technical and complex, but that any decision taken was one which had to be addressed

judicially (whether by the manager or by the council members), it is clear that there was considerable scope for challenge to any

decision in the planning area made by the councillors pursuant to s.4 and correspondingly increased opportunity for friction between

the management and elected representatives.

Observations on Sharpe vs Dublin City and County Manager

However, Sharpe was merely the backdrop to the present proceedings and was not subject to any extended analysis in the course of

the hearing. Accordingly, it is not appropriate to address it in any further detail here. It is a matter, however, that might repay

reconsideration, both judicial and legislative, since there is in my view, in principle, little to be gained by constituting the executive of

the local authority as a shadow court of judicial review, and much to be lost, in increased stress upon the executive and its advisors

in respect of the validity of s.4 procedures, and increased aggravation to elected members in seeing their decisions in effect quashed

by the executive. Ironically, it might also be said that s.4 motions (now s.140 of the 2001 Act), are less potentially harmful in the

area of planning than in any other area of the local authority function, since there is an independent and relatively rapid appeal

process to An Bord Pleanála where the decision is to be addressed on the basis of proper planning and development, and where the

s.4 motion carries no particular weight other than the unintended one that it perhaps serves as a warning light that the decision made

deserves scrutiny. Indeed, one author has suggested that in respect of planning decisions “it may be that in practice the provision is

inoperable, because of the impossibility of obtaining a decision from the elected members of the planning authority which may be

said to have been reached in a traditional manner, taking into account all relevant considerations”. (Galligan, Irish Planning Law and

Procedure p.220)

Accordingly, I am not convinced that there is much benefit in asserting an entitlement and even a duty on County Managers to refuse

to obey s.4 motions which the manager considers (or more probably is advised) to be invalid on any one of the myriad grounds upon

which administrative action may now be impugned. It seems to me that it puts the County Manager in a particularly invidious position

where he is obliged to choose between two opposing legal duties: the statutory duty to comply with a (valid) s.4 motion, and the

Sharpe derived entitlement (if not duty) to refuse to obey an invalid motion.

The difficulty is that invalidity is a relative and not an absolute concept, and is furthermore dependant upon court determination -

something which is by definition not available to a County Manager when he or she receives a s.4 motion. As Lord Radcliffe

perceptively observed, in Smith v East Elloe Rural District Council [1956] AC 736 at 769 an Act “bears no brand of invalidity upon its

forehead. Unless the necessary proceedings are taken at law to establish the cause of invalidity and to get it quashed or otherwise

upset, it will remain as effective for its ostensible purpose as the most impeccable of orders”. Similarly Craig, Administrative Law

(1993) page 390 observes, “It is difficult to see how, if there was no challenge … it would be possible to say that the decision was

ultra vires at all”. The position has now been reached where it may be said that an invalid act is an act which a Court will declare to

be invalid. As Professor Wade observed “… the truth of the matter is that the court will invalidate an order only if the right remedy

is sought by the right person in the right proceedings and circumstances” and, it might be added, at the right time. Thus it has been

observed by Lewis, Judicial Remedies in Public Law 3rd Edition page 187; “nullifying is a description of what courts do when invalidity

is properly established and the courts consider it appropriate to intervene”.

It is, at least in my view, the position that any citizen is entitled to take a view of the validity of a public law instrument, action or

decision, and to act accordingly. A citizen is entitled to gamble that his view (or more probably his adviser’s view) of the ultimate

decision of a Court on the question of the invalidity will vindicate his position and/or the advice. However, the fact that something

can be done, does not at all mean that it should be done, still less by a county manager, who if he is wrong, will find himself in breach

of his obligation to comply with the s.4 motion. This is in itself an unattractive possibility, particularly when it is allied to the certainty

that the actions of the County Manager in refusing to comply with a s.4 motion are bound to lead to a deterioration in the relationship

between the manager and the elected representatives. I do not see why County Managers should be encouraged to gamble in this

way, particularly since it is likely to generate further expensive litigation.

In most cases it ought to be sufficient for the manager to warn members that he or she considers and/or is advised that the

resolution is invalid and is likely to be quashed with possible consequences for the councillors if they were to proceed. It might be

desirable in any case to provide for some form of rapid guidance so that it might be said that neither the manager nor the councillors

would be in breach of duty if they acted in accordance with the guidance offered. That however, is a matter for legislative decision.

This of course is not to say that County Councillors should be encouraged to indulge the power to pass s.4 resolutions in planning

matters on an indiscriminate basis. As set out above, it is difficult to pass a valid s.4 resolution on planning matters. Many s.4

resolutions will likely be invalidated by the High Court, or the decision reversed on appeal by An Bord Pleanála. The only point is that I

do not think it is necessarily conducive to good governance that a County Manager should be put in the position of having to

prejudge those decisions.

Of course it may be said that the fact that the s.4 obligation on a County Manager is qualified by the fact that a direction can only

be given in relation to something which a manager can “lawfully” do, means that a County Manager cannot avoid the obligation to

make some judgment as to the validity or otherwise of the resolution. This, in my view, is misconceived. In this case for example,

there is no doubt that the County Manager could lawfully do the act which he was directed to do - namely refuse planning

permission: that was something within the Manager’s powers. It only would become unlawful, in the event that it was determined that

the s.4 resolution was invalid. It seems to me that the word “lawfully” is here directed to a question of formal vires. If the section had

intended that an extensive consideration of the legality of the underlying resolution was contemplated by this phrase, then it seems

likely that the section would have provided for some method of resolving that dispute without protracted litigation, something which it

expressly provides for in subsections 10 and 12.

For these reasons I regret the fact that the precise legal obligations under s.4 have not been the subject of further judicial scrutiny,

or indeed legislative reconsideration, and it seems to me desirable in the interests of cohesion and harmony within county councils,

that such a course might profitably be taken in the future.

The Dispute

In any event, the s.4 procedure, and the jurisprudence developed in relation to it only provided the opportunity for a dispute that in

this case obviously had deeper roots than the mere issue of planning permission sought for a pet crematorium at Redcross. However,

once that dispute caught fire, the s.4 procedure with its capacity for misunderstanding and offence provided a ready source of fuel

particularly for those willing to misunderstand and ready to taken offence.

The Planning Application and the First Motion of the 10th of July 2000

Mr Andrew Byrne cannot have anticipated what was to ensue when he made an application in March 2000, to Wicklow County Council

for planning permission for the conversion of a milking parlour to a pet crematorium. Initially the matter went smoothly. Further

information was sought, and the reports on the planning file were in favour of the grant of permission. However, the application had

sparked local opposition and the objectors’ case was taken up by some local councillors and notably the three Appellants. The

procedure under s.4 was then invoked and a motion was issued on the 27th June 2000 signed by inter alia, Councillors Kelly, Doran

and Bourke (the first two of whom are Appellants in this case) which purported to direct the Manager to refuse the permission. This

motion was debated at the next meeting of the Council on the 10th July 2000. The minutes of that meeting recorded that the

councillors were advised by the chairman in the course of the meeting to “stick to” the planning issues. The minutes also record that

even this sensible advice was disputed by Councillor Kelly. A number of comments in relation to the planning application were made

by, among others, Councillor Kelly and Deputy MacManus. There was a debate which was itself perhaps unremarkable in local

government terms, but probably strayed beyond the strict consideration of planning merits. Indeed, it does not appear that the

official reports of the relevant sections within the Council received any particular consideration at the meeting. Twenty-two of the

twenty-four members of the Council attended, and all attendees voted in favour of the motion. The County Manager was present at

the meeting, and merely observed that the application for permission did not contravene the county development plan.

The timeline becomes increasingly important at this point. The application having been made, further information having been sought

and provided, a decision was required to be made by at the latest, the 16th July 2000 (which itself was a Sunday) otherwise the

Applicant would obtain a default permission. The County Manager sought and obtained an opinion from the law agent on Wednesday

the 12th July which indicated that the law agent was inclined to the view that the s.4 resolution was invalid largely because of the

taking into account of irrelevant considerations, namely some of the observations that had been made in the course of the debate as

to the private nature of the facility. Because of perceived ambiguity in that advice, the County Manager obtained a further note of

advice from the law agent on the following day the 13th July. On that day he determined to decide to grant the permission and a

notification of intention to grant permission was issued on that day. On the same day he wrote to councillors informing them of his

decision, and enclosed copies of the law agent’s advice. In the event the stance taken by both the law agent and the County

Manager was vindicated by the decision of the High Court. However, it appears that the letter from the County Manager did not reach

councillors until after they had learnt of the decision. In the disputes that ensued it appears that one contributing factor was the fact

that some councillors had taken considerable offence to the fact that they had not been informed by the County Manager in advance

that a decision was about to be made contrary to the s.4 resolution.

The Motion of the 20th July 2000 (The Second Motion)

The next step was a meeting of the 20th July 2000 which was attended by sixteen of the twenty-four members of the Council. A

motion had been issued on the 14th July 2000 signed by five councillors including Councillor Kelly, Councillor Doran and Councillor

Bourke, which sought to reiterate the motion of the 10th July, and in default to authorise the members to seek independent legal

instructions and the Council’s opinion on the Manager’s actions. The entire motion read:

“We the undersigned Members of Wicklow County Council hereby call a Special Meeting of Wicklow County Council to be

held in Council Chambers, County Buildings, Wicklow Town, County of Wicklow, on Thursday the 2nd July at 2pm to

discuss the following Motion:

that this Council directs the County Manager to adhere to Resolution, regards a section 4 City and County

Management (Amendment Act), 1955 Planning Application Reference Number 2335/00 as passed by the Members

of Wicklow County Council at the meeting of Wicklow County Council held on July 10th 2000 in respect of the

proposed development – “Conversion of Milking Parlour and installation of Crematorium at Oghill, Redcross, County

Wicklow). Should the County Manager refuse to implement the democratic reserved function of the elected

Members of Wicklow County Council, the Members will immediately seek independent legal instructions and

Counsel’s opinion on the Manager’s actions with regard to this matter.”

There was much confused discussion at this meeting. Some councillors seemed willing to blame the Manager not only for refusing to

follow the s.4 motion but for failing to advise them at the meeting of the 10th July, of their obligation not to take into account

irrelevant considerations and accordingly run the risk of rendering the motion invalid. The democratic rights of the councillors were

invoked and it was suggested that a vital matter of principle was involved. A flavour of the meeting can be obtained from this extract

from Councillor Kelly’s intervention:

“He stated that he would not be party to anything which will allow the decent people of Redcross to be out manoeuvred

by a technicality and a failure of the County Manager and Law Agent to quote a very well known precedent.”

The County Manager addressed the meeting and said it had never been his intention to be discourteous to members and he wished to

comply where possible with their wishes, but that he had been advised that the resolution was invalid. He pointed out that it was

open to any one to appeal the decision to An Bord Pleanála and that submissions could be made to that body up until 5.30 pm on the

14th August.

It is not clear if this motion was treated as a s.4 motion. If it was, it was even more clearly invalid than a motion of the 10th July

since there was no way in which the Manager could refuse the permission at that stage. In essence, this motion appears to have

been treated as a motion to authorise the taking of legal advice. The motion was passed by the vote of all sixteen members present.

During the course of the meeting, there was reference to the “same formula” being adopted as had previously been followed, which

appears to have involved the nomination by each group on the Council of a member to constitute a subcommittee, to take the legal

advice. In this case four members undoubtedly sought legal advice from the firm of Fionnuala Cawkhill and Associates, and counsel.

Three of those members are the present Appellants, Councillor Kelly (who represented the Labour and Green parties), Councillor Cullen

(who represented the Independent group), Councillor Doran (representing Fianna Fail). The fourth member of the group was Councillor

Sylvester Bourke (who was nominated by or represented the Fine Gael members). The outcome of that advice appears to have been a

third motion.

The Motion of the 3rd August 2000 (The Third Motion).

A further meeting was held on Monday the 3rd August 2000. At this meeting seventeen members were present, and fourteen of them

ultimately voted in favour of the motion. This motion read:

“Having regard to the Notice issued pursuant to section 4(2) of the City and County Management (Amendment) Act,

1955 and having regard to the resolution of the Council of the 10th July 2000 on foot of that Notice directing the

Manager to refuse planning permission for a proposed development consisting of the conversion of a milking parlour and

installation of a cremator on planning application register reference number 00/2335 and having regard to the refusal of

the County Manager to comply with the terms of that direction and having regard to the decision of the Manager to

grant planning permission for the proposed development in conflict with the terms of that resolution this Council hereby

directs the County Secretary to forthwith instruct Fionnuala Cawkhill and Associates to draft proceedings and bring an

application to the High Court seeking a judicial review of the decision of the County Manager to grant planning permission

under planning application registered reference number 002335 and to do any other matter or thing pertaining to the

bringing of such proceedings, which instructions should be given not later than Friday the 4th of August 2000.

And this Council directs that such funds as may be necessary to properly take this action be made available and the

Council directs furthermore that such proceedings be instituted as soon as practicable from the date of this resolution.”

The motion was proposed by Councillor Doran and seconded by Councillor Roche.

It does not appear that this motion was itself formulated as a motion pursuant to s.4. It appears, but it is not clear, that it was

treated as an ordinary motion of the Council pursuant to standing orders. It is noteworthy that the motion was directed to the

County Secretary rather than the County Manager. Again, the motion was supported by Councillors Bourke, Cullen, Doran and

Councillor Kelly, who said that “this expenditure [presumably on proceedings] could be the greatest investment in democracy that

this council makes”.

It appears that advice had been obtained from Junior Counsel, which had been endorsed by Senior Counsel. It is however an

unsatisfactory feature of this case that while advice is referred to, and sometimes excerpts from it recounted in the various affidavits

sworn, the advice obtained has not itself been disclosed. There is of course no obligation on parties to disclose the legal advice they

receive but where, as here, parties seeks to suggest that they should be excused from responsibility because they acted upon legal

advice, then it seems to me it is entirely unsatisfactory to have only a partial and selective disclosure of that advice.

It is also a relevant factor in this case that the participants were acting under considerable time pressure. In this case, there was not

only the time period for the launching of an appeal to An Bord Pleanála, but also, if any judicial review proceedings were to be

commenced to challenge the decision made on the 13th of July, then as the law then stood under s.82(3B) of the 1963 Act as

amended, an application had to be initiated within two months of that date. Whether that factor had an influence or not, it seems

certainly to be the case that the different, and admittedly complicated legal issues, were never sufficiently identified to allow clear

decisions to be taken on them.

The meeting of the 3rd of August 2000 was attended by the Deputy County Manager who advised that the motion may not comply

with s.4, that as far as he was aware the County Council could not fund a judicial review of its own decision, and that there was no

mechanism for the County Manager to unmake a decision already made. There was much sense in these observations. It is apparent

however even from the relatively bland account given in the minutes, that there was considerable dispute at the meeting. The Deputy

County Manager stated that it appeared that this was not a valid s.4 motion, and that the Secretary could not act on the basis of it.

The Assistant County Secretary said the only person the members could instruct was the County Manager not the County Secretary.

There was then a discussion as to whether the motion could be amended. The acting Assistant County Manager pointed out that if a

case was taken as set out in the motion, Wicklow County Council would be suing Wicklow County Council. At that point, one

councillor discussed putting down a formal s.4 motion. There was further discussion where it was clear that the officials did not

consider that the motion was valid. Nevertheless, it was passed by fourteen votes to two with one abstention and seven members

not present. Again the minutes contain a reference to the fact that the four members of “the group” were to meet the lawyers in the

morning i.e. on Tuesday 4th August 2000.

The 10th August Letter

On the 10th of August 2000, the acting Assistant County Manager wrote to each individual councillor. This letter appears to have

been prompted by communication and correspondence from the solicitor who was referred to in the motion and who had stated that

she was awaiting instructions from the County Secretary on foot of the motion passed on the 3rd August. The acting Assistant

County Manager’s letter concluded:

“I wish to make clear that no Manager’s Order has been made for the issue of proceedings in relation to this matter, nor

have Messrs Fionnuala Cawkhill & Associates Solicitors been instructed or retained to act on behalf of the Council.

Accordingly, any members causing proceedings to be issued shall be personally liable for same, in particular, as regards

the costs of same”.

This letter is of obvious importance in the light of what transpired. It is important because it made it absolutely clear that no

Manager’s order had been made for the issuance of proceedings, nor was the solicitors firm being retained. Furthermore, it raised

explicitly the question of the costs of the proceedings, and the possibility of individual councillors being personally liable for costs.

While it seems to have been envisaged that any proceedings would be brought by individual members, it is in my view significant that

before proceedings were started, the Councillors were on notice of the possibility that they could be fixed with costs.

The Motion of the 28th of August 2000 (The Fourth Motion).

The upshot of the advice taken by members of the group, was one further and final motion returnable for a meeting of Wicklow

County Council on Monday 28th August. That motion read:

“We the elected members of Wicklow County Council direct the County Manager pursuant to section 4 of the City and

County Management (Amendment) Act 1955 to instruct Fionnuala Cawkhill and Associates Solicitors to bring proceedings

and seek relief by was (sic) of judidcial (sic) review to compel the County Manager to comply with the direction of the

Council to refuse planning permission for a crematorium (planning register reference number 2335/00 at Oghill Lower,

Redcross in the County of Wicklow and furthermore to do all necessary things in the course of those proceedings on the

Council’s behalf as is appropriate to successfully bring those proceedings on for a hearing. We the elected members

further direct the County Manager to put appropriate administrative procedures in place so as to ensure that the legal

proceedings be brought expeditiously and effectively and make all appropriate documents and facilities available relevant

to such proceedings and make necessary financial resources available in this regard.”

The County Manager was invited to speak. He made it clear that on the original date of the 10th of July there had been two s.4

motions and planning permission was granted as per the members wishes on one motion, and set out his reasons for rejecting the

members motion in respect of the pet crematorium. He also pointed out that had a planning decision not been made on the Thursday

after the meeting, planning would have been granted by default with no planning conditions. He stated that there was no question of

him not complying with future s.4 motions. He pointed out that the issue of planning permission was now before An Bord Pleanála who

would determine the issue. He stated that the legal opinion from the Council’s own law agent was that the s.4 motion was invalid and

in those circumstances the Manager had no option but grant permission.

This was an entirely reasonable position, but it did not persuade the majority of the councillors. In the event the motion was put and

carried by seventeen votes to four with three members not present. The County Manager indicated that he would inform the members

of the legal advice on the discussions and on the motions.

The Subcommittee Meeting with Lawyers on the 6th or 7th September

It appears, that it was indicated in the immediate aftermath of the meeting of the 28th August, that the executive did not consider

that that motion was valid either, and was not going to comply with it. There was at least one further meeting between the

subcommittee and the legal representatives. Unfortunately, that critical meeting (or meetings) is shrouded in some mystery for

reasons, which I will address shortly. However, it appears to be common case, that only three members of the subcommittee,

Councillors Doran, Kelly and Cullen, attended that meeting. They are the three Appellants. Indeed, it is the conduct of the Appellants

in attending this meeting (and as the High Court Judge found and as they now admit) in instructing the issuance of proceedings,

which gave rise to the ultimate finding of the High Court that they were liable for the cost of the proceedings. The fourth member of

the group, Councillor Bourke, has sworn a detailed affidavit explaining that he did not consider that he had authority to go the

distance of instructing the issuing of proceedings, and in any event had not attended this meeting.

What is notably and surprisingly unclear from the very many affidavits which have been filed, is exactly when and how the decision

was made to institute proceedings, something which might have been thought to have been central to these proceedings. It seems

that there was a meeting to finalise the papers and swear the grounding affidavit. The principal affidavit was sworn by Councillor

Doran on the 7th September, and a supporting affidavit was sworn by Councillor Kelly on the 3rd of November 2000. It seems probable

that instructions must have been given at least to prepare the papers, and then further instructions given to issue proceedings. It is

acknowledged that there was a meeting on either the 6th or 7th between Councillors Doran, Kelly and Cullen, and the lawyers. While

it seems absolutely clear – and was so found by the High Court judge – that it was the three councillors who gave the instructions to

issue the proceedings, the evidence given in the High Court running to some twenty-six affidavits, does not address this critical

period in any detail. The passive voice is regularly employed. Instructions, it is said, were given. Proceedings were issued. There the

matter is left. I do not consider that it is satisfactory or indeed acceptable, that parties who invite the court to exercise a discretion

in relation to costs have failed to provide a comprehensive and frank account of these events.

There can be little doubt that there was considerable pressure building up at this stage. The Planning Acts imposed very strict time

limits in relation to the commencement of judicial review proceedings in respect of planning decisions and also imposed strict

requirements as to service. Any proceedings had to be commenced within two months of the 13th July 2000, and that time was now

running out. The month of August had been taken up with a series of meetings, none of which succeeded in passing a resolution

under s.4 of the 1955 Act which the management considered itself obliged to comply with. Frustration was mounting and being fuelled

by much misplaced rhetoric about democracy.

Any proceedings faced formidable obstacles some of which were of the most basic variety namely, the identity of the proper

Applicants and the identity of the Respondent. Furthermore, it could not be said that there had been any collective decision by any

group of councillors to approve the issuance of proceedings. There was no formal manager’s order, and no resolution by the

councillors to commence proceedings, notwithstanding the holding of three meetings of the Council since the 13th of July. The

absence of any formal authorisation from any organ of the County Council, was by no means a trivial matter. The Councillors

themselves can hardly have been unaware of formality and its significance. The formality of council proceedings with standing orders,

motions, and resolutions is a distinctive and pervasive feature of local government.

Of course these difficulties would have been avoided, if the individual Councillors, or as in the Sharpe case an interested party, had

commenced proceedings. But it was clear that the Councillors were anxious that any money spent, and any risks taken, should be by

the Council. In this regard, there was a significant exchange at the meeting of 3rd August 2000. One of the councillors, Mr Andrew

Doyle, was critical of the procedure being adopted, and raised the question of whether it was not preferable to seek revocation of the

planning permission under s.30 of the 1963 Local Government (Planning and Development) Act. Deputy Kavanagh interjected “there is

a specific time factor, for next week. A section 30 leaves councillors individually open for legal action”.

But even if the councillors had succeeded in issuing proceedings in the name of the Council, it is hard to see how those proceedings

could get any where. No attention seems to have been paid to important and familiar features of the County Management Act 1940.

In particular, under s.32 of that Act, the County Manager was to act for the County Council in all legal proceedings and to do all such

acts matters and things as he might consider necessary for the preparation and prosecution or defence of such proceedings. It is

hard to see therefore how there could ever have been a justification for the councillor seeking to control the litigation themselves.

Furthermore, s.19 of the same Act provided that in those matters in which a County Manager was acting, which would require to be

taken by resolution if to be carried out by the council, his action was to be taken by a manager’s order. In this case, the proceedings

were initiated and commenced without either resolution or a Manager’s order. Those difficulties were never addressed.

There was also an issue as to the proper respondent. That depended to some extent on the issues sought to be litigated. But Sharpe

made it clear, that in any action in respect of the County Manager’s conduct in refusing to comply with a s.4 motion, the Council was

an, if not the, appropriate respondent. If the proceedings sought to challenge the grant of permission then the Council was the

essential respondent, since it was the Council which had the power to grant such permission. This meant however, that the potential

Applicants were contemplating the possibility of proceedings in which both the Applicant and the Respondent would be Wicklow

County Council, something that was legally nonsensical. This very difficulty ought perhaps to have alerted the councillors to the

problems of the course on which they had embarked. In the end, proceedings were issued in the name of Wicklow County Council as

Applicant, and the County Manager as Respondent. An Bord Pleanála was also joined in order to permit the Applicants to seek an

order restraining the hearing of the appeal which by that stage had been launched, and Mr Andrew Byrne, the applicant for planning

permission was joined as a notice party, as indeed the relevant legislation and rules required.

All these steps had perhaps their own internal and rather tortuous logic, but it seems plain that little or no consideration was given to

the position o Mr. Byrne, a constituent and rate payer who had the misfortune to be caught up in the complex and expensive

proceedings then being commenced. This was particularly significant because the Applicants followed the template of the proceedings

in Sharpe, and sought to challenge the decision of the Local Authority to grant permission on the basis that while An Bord Pleanála

could resolve the planning issues it had no jurisdiction to determine the legality of the County Manager’s conduct. The proceedings

sought therefore to restrain the holding of the hearing of the appeal by An Bord Pleanála pending the determination of the judicial

review proceedings and an undertaking to that effect was given by the Board. The net effect of this was to delay the hearing before

An Bord Pleanála until the complex litigation had been resolved. From a planning perspective, this was particularly frustrating because

the judicial review was likely to make very little difference to the planning decision in the end: it was plain that any decision would in

all likelihood be appealed to An Bord Pleanála which would have to resolve the matter by reference to planning criteria, to which the

presence or absence of a s.4 motion was virtually irrelevant. At best, the position of Mr Byrne does not appear to have been

considered. At worst, the Applicants may have been quite content if the end result of the process of commencing litigation was to

put the application into an indefinite limbo. Delay in planning matters is often as fatal as an adverse decision, and easier to achieve.

One noteworthy feature of all of this is that with the possible exception of some relatively mild conciliatory remarks made by the

County Manager at the meeting of the 28th August, there does not appear to have been any attempt to seek to resolve the

underlying structural problems which had clearly given rise to the difficulties in the relationship between the County Councillors and

the County Manager, or even to seek to separate those from the pure planning issues. There was no particular reason why both

issues had to be the subject of litigation still less the same set of proceedings. However no thought appears to have been given to

resolving the differences even in part. Instead, the matter was let proceed. It should also be said, that the commencement of the

proceedings against the County Manager, put the County Manager in a very difficult position. Had the proceedings succeeded, his

position would have become very difficult, since it would have followed necessarily that he had acted in breach of the s.4 motion. In

commencing the proceedings therefore, the Applicant Councillors were targeting the County Manager in a way which could have had

very profound consequences for him had the proceedings succeeded. Indeed that was adverted to by Councillor Kelly at the meeting

of the 20th of July where he advised that “there may be a surcharge on the County Manager and this will have major implications on

the role of County Manager”. It is therefore difficult to be sympathetic to the Applicants when in the event those proceedings failed

and the gamble having been lost, the County Manager sought to fix them with the costs.

The proceedings were conducted at a leisurely pace thereafter. The only notable features of the proceedings for present purposes, is

that Deputy MacManus swore an affidavit in support of the Applicant. This arose because certain comments made by her at the

original meeting of the 10th July 2000, had been relied on by the Respondent, as being evidence of the irrelevant considerations which

,it was contended ,rendered the s.4 motion invalid. However, this feature of the litigation is now relied on in this appeal, to support

the Appellants contention that in truth the other councillors were entirely supportive of the action and that the High Court Judge was

wrong to single out the three councillors for the award of costs. Councillor MacManus, it should be said, swore a further affidavit in

the costs proceeding explaining that she considered she was merely giving evidence at the solicitor’s request in relation to an issue

that had been raised in respect of her contribution to the original discussion on the 10th of July and did not understand herself to be

maintaining the proceedings. The Appellant councillors also rely in this regard on the proceedings of the Council held on the 11th of

December 2000.

On the 11th December 2000 there was considerable agitation in the Council that the pet crematorium had been granted a waste

licence by the Manager. In the overheated atmosphere of conspiracy which often surrounds events such as this, it was asserted by

some councillors that this was a deliberate attempt by management to undermine the proceedings. The protestations of the acting

County Secretary that this was a separate matter, and moreover one which the Council was obliged to deal with, were met with

derision. Councillor Cullen, for example, said that he found it amazing that while the legality of the planning application was “now

before the High Court” the County Council should issue a licence to the company for an incinerator. A more vivid account of the

meeting is to be found in the Wicklow People of Thursday 14th December 2000, which was exhibited in Mr Doran’s affidavit, where

Deputy Roche is recorded as expressing himself to be “flabbergasted” by the decision of the County Council management, and saying:

“There can be no doubt whatsoever that the Council action has deliberately undermined the efforts of local elected

representatives to stand by the community in the Redcross area which feels itself beleaguered by this planning

application.”

There can be little doubt that the “efforts of the local representatives to stand by the community” was a reference to the

proceedings. The Appellants point to this meeting in particular therefore as showing both an awareness of the proceedings on the

part of the other councillors, and support for them.

In the Statement of Opposition in the proceedings, the Respondent pleaded at the very outset that the proceedings were not

properly constituted. Accordingly the first two grounds of opposition were as follows:

1. “In as much as these proceedings relate to the exercise or performance of the executive functions of the Council as

planning authority, the elected members of Wicklow County Council as such, do not have jurisdiction to challenge the

decision of the County Council as planning authority. No jurisdiction exists within the County Management Acts 1940-

1994 (or otherwise) whereby the decision dated 13th July 2000 by the County Council, as planning authority, can be

challenged by itself.

2. The Applicant in purporting to bring these proceedings under the will and/or direction of the elected members of

Wicklow County Council cannot do so save and in accordance with the County Managements Acts 1940-1994. The

Applicant has failed to institute these proceedings in accordance with the said Acts for the reason, inter alia, the said

Acts require that in any such legal proceedings, the County Manager shall act for and on behalf of the Council.

Furthermore these proceedings are not authorised by the said Acts in the absence of a manager’s order.”

However, no attempt was made to have that issue decided in limine, and instead, the entire matter was heard more than two years

after the event on the 19th and 20th of December 2002 and disposed of by judgment of Ó’Caoimh, J. delivered on the 18th March

2003. The proceedings were in the nature of an application on notice for leave to seek judicial review which required the substantial

grounds be demonstrated before leave could be granted. In the event, Ó’Caoimh, J. refused leave to seek judicial review holding that

the County Manager was correct to consider that the 10th of July s.4 motion was invalid because the councillors had taken into

account irrelevant considerations. While formal advice was taken and consideration given by the councillors in a general meeting as to

the merits of seeking leave to appeal this decision, no application was in fact brought and accordingly, the conclusions of the learned

trial judge are final. It may be superfluous therefore to say that I agree with the conclusions to which he came. While the proceedings

at the council meeting on the 10th of July were by no means extreme, they did, whether from force of habit or otherwise, range

further than the precise and dispassionate consideration of the planning issue presented for decision. On the one hand, there seems

to have been virtually no consideration of the expert reports and on the other, councillors made speeches about the matter, which

almost inevitably strayed beyond the concept of proper planning and development. Indeed, this case, by no means extreme,

illustrates how difficult if not impossible it is for councillors who are public representatives rather than executive officers or quasi

judicial decision makers, to make a valid decision on an area that is both particularly technical and requires as a matter of law,

disinterested judicial consideration and determination.

There is one matter upon which the High Court Judge expressed an opinion which though clearly obiter, is a matter of more general

application. It had been strongly argued on behalf of the Respondent that the s.4 motion was also invalid, because it sought a

negative i.e. the refusal of planning permission. The genesis of this argument is to be found in a passage in the first edition of the Law

of Local Government in the Republic of Ireland, authored by the former Chief Justice, Mr Justice Keane. At page 35 of the text, the

author there expressed the view, with support from an observation to be found in Street, Local Government, that the act matter or

thing which the manager is required to do pursuant to a valid resolution under s.4, must be some “positive step connected in some

sense with the discharge of the executive functions of the manager”. Accordingly, it was suggested that s.4 should be properly

construed as being “confined to resolutions requiring the manager to take a positive step”. On foot of these general, and entirely

correct, observations the belief appears to have grown up, that s.4 motions could not authorise the refusal of permission. That point

was argued strongly in the High Court case on behalf of the County Manager. In his judgment in this case, the learned trial Judge

indicated that he was disposed to accept the argument of counsel on behalf of the Respondent in this regard, and that therefore the

County Manager could not be directed to refuse a grant of planning permission. He said:

“Having reached this conclusion, it is not strictly necessary for me to construe the ambit of section 4 of the Act of 1955

and whether it permits the passing of a motion directly to a county manager to refuse planning permission in any give

case. I believe the matter is arguable but that the view expressed by counsel on behalf of the Respondent is the one

which on balance I would be inclined to accept as correct, namely, that a s.4 resolution may not direct a county

manager to refuse to grant planning permission.”

It is noted, in the second edition of Keane, (Butler ed.) referring to this observation, that therefore “the issue remains live”.

Since this matter was a significant part of the legal dispute to give rise to these proceedings, and furthermore, since a view has been

expressed in the High Court, and since these matters rarely reach this Court, I think it is appropriate to express my respectful

disagreement with the conclusion of the learned High Court Judge in this regard. It is clear, that a s.4 resolution is indeed confined to

a resolution requiring the manager to take a positive step. However, in my view, the refusal of planning permission is just such a

positive step on the part of the Manager albeit one that results in a negative outcome on the part of the applicant. In this case, the

resolution did not purport to direct the Manager to refrain from acting (something that would not be within the scope of s.4) and

which would, ironically, have resulted in a default permission. On the contrary, it directed the Manager to do something which was

otherwise within his power i.e. refuse planning permission. I am comforted in this regard by the fact that it seems clear to me, that

Keane, far from supporting the interpretation that a s.4 resolution cannot direct the refusal of the grant of planning permission, seems

to assume the opposite. Thus, at page 181 of the 1st edition, it is stated:

“If before passing a resolution under section 4 requiring the manager to decide to grant or refuse a permission …” (my

emphasis)

On the same page it is stated:

“If it is competent for the elected members in the circumstances referred to above to pass a valid s.4 resolution, then

it is they and not the manager who are deciding to grant or refuse the application.” (my emphasis)

In my view, this accords both with common sense and the structure of the section. I express my views on it here in the hope,

perhaps forlorn, of reducing the degree of legal confusion surrounding the operation of s.4 motions.

In the event the trial Judge rejected the application on the merits in a comprehensive judgment running to 30 pages. The last

paragraph of that judgment adverted to the question of the nature of the proceedings. It stated:

“With regard to the identity of the applicants in this case, I am satisfied that had I granted leave to challenge the

planning decision at issue that the correct respondent in that regard should be Wicklow County Council. I believe that

while there appears to be no precedent for an action of this nature between the elected representatives on the one

hand and the county manager on the other, that it would be preferable, especially in the planning context, if such an

action was taken by the members in circumstances where they are named individually. Had I been disposed to grant the

leave sought in this case I would have been happy to amend the title in an appropriate manner and I wish to make clear

that in reaching my decision in this case I have not done so on the basis of the manner in which the action has been

entitled.”

We can now only speculate as to what might have occurred if the issue of the correct title to the proceedings had been addressed,

either at the outset, or indeed, if the trial judge had been minded to grant leave to challenge the planning decision but on terms that

the amendments to the title be made. In particular it might be interesting to speculate on the likely attitude of other members of the

Council to the proceedings, at a time when it might have appeared that they still had a prospect of success. Furthermore, if the

matter had been addressed at the outset, it might have forced all the parties to address the complexities of the issue, and the

manner in which the proceedings were to be constituted, and just as importantly, paid for. In the event this did not occur, and on the

18th June 2003, the High Court order was perfected. That order recorded, that on the date of judgment (recorded in the order as the

26th February 2003) it had been ordered that the Notice Party, Mr Byrne, would recover his costs against the Applicant (then

described as Wicklow County Council) and the case then being mentioned on four subsequent dates, the Court, having addressed the

issue on the 23rd June 2003, and again on the 2nd July , refused to make an order that the Respondent, i.e. the Manager, pay the

costs that the Applicant was required to pay Mr. Byrne.

The Order recorded no other order as to the costs of the Respondent. Instead, an order was made which gave rise to the

proceedings which were the subject of this appeal. On the 23rd June 2003, the 25 members of Wicklow County Council were joined

individually, “as Applicants to these proceedings”. The joinder of the members of the County Council was in itself quite unusual, but

what transpired thereafter was quite remarkable. The case appears to have been mentioned in Court on another ten occasions, and

certainly to have occupied full hearing dates on the 14th October 2003, and the 24th and 25th February 2004 because we have been

furnished with transcripts of these hearings. In the event, more than a year after the original judgment, the High Court Judge

delivered a judgment on the 18th March 2004 running to 55 pages in which he awarded the Respondent costs of the proceedings

against three named councillors, Councillors Cullen, Kelly and Doran. The Respondent County Manager however was directed to pay

two days costs (being the 24th and 25th of February 2004) to ten named councillors who had attended on those days to argue that

they should not be fixed with costs. Even then the matter was not at an end. On the 21st May 2004 there was a further hearing in

respect of the costs which had on the 18th June 2003 been ordered in favour of the second named Notice Party, Mr. Byrne against

the Applicant (then at least nominally the County Council). The Court ordered that that order for costs should be “in favour of the

second named Notice Party against the fifth, seventh and twelfth named Applicants” namely Councillors Doran, Kelly and Cullen. The

end result of the proceedings was therefore, that the Council (through the County Manager) was responsible for the costs of the

successful councillors on the basis of a two day hearing, and that the three named councillors, were responsible for all the costs of

both the Respondent County Manager, and the second named Notice Party, Mr Byrne. Against these orders, the three named

councillors appeal to this Court. On this appeal, the Appellants were represented by counsel who had not appeared in the High Court.

The unusual circumstances in which the members of the Council came to be added are set out in the judgment of the learned trial

judge. It appears that the solicitor on record for the Applicant (nominally Wicklow County Council) was asked the identity of the

persons instructing her. This she refused to do, claiming that the information was privileged. Much of what had transpired up to this

point was muddleheaded and misconceived, but this event marked a significant turning point in the proceedings. The solicitor was an

officer of the court. She had no entitlement to refuse to answer the question. There are very few circumstances in which the identity

of the client can be said to be privileged. See Miley v Flood [2001] 2 IR 50. Nor was this a novel proposition only recently identified.

See e.g. Bursill v Tanner [1886] 10 QBD 1. The only possible basis upon which identity might be privileged is if confidentiality of

identity was specifically sought at the time when instructions were been given. Not only was there no evidence of this, if there had

been such evidence it would have been inconsistent with the Appellants case that the proceedings were at all times fully and

knowingly authorised by the general body of councillors. It does not appear that the solicitor made any attempt to establish a factual

basis upon which it could be said that the identity of her instructing clients was privileged. There was in my view, no justification for

this approach, which led to the proliferation of parties and representatives, which in turn created endless complication, and gave rise

to much additional expense. The position became even more complicated when the solicitor involved retired from practice and

transferred her business to her remaining partners, who had set up a new firm. This new firm was unable, or perhaps unwilling, to

come on record for the nominal Applicants. The almost farcical situation was arrived at, where there was no representation on behalf

of the party which had nominally brought the proceedings and which was on the face of it liable for costs but where both firms of

solicitors felt it necessary to be represented by counsel themselves. This, together with the proliferation of representation on behalf

of the other individual councillors, was itself a graphic illustration of how badly wrong these proceedings had gone.

Two further points might be made. First, in the course of the costs hearing, a number of councillors made the point that they had

never received a letter which was then required to be sent pursuant to s.68 of the Solicitors (Amendment) Act, 1998, by a solicitor

informing a client of the likely costs of proceedings. It does not appear that any s.68 letter was sent in this case. If this was not an

oversight, it was a further illustration of the fact that there was a difficulty about the identity of the client which had not been

adequately addressed at the outset of the proceedings. Second, this was also by no means a merely technical matter. The object of

a s.68 letter is in part to inform a client of the costs that they are likely to be responsible for. Thus, had this issue been addressed it

might have focused attention at an early stage on question of the potential liability for the costs that were being incurred on both

sides. Had that issued been addressed, it might either have resulted in willing clients being identified, or the discontinuance of the

proceedings. Either course would have preferable to what ensued.

It also appears to me that the difficulties in this regard cannot necessarily be laid solely at the solicitor’s door. While the claim to

privilege was misconceived, the only possible privilege was that of the client. The solicitor could not properly raise the claim of

privilege without instructions, and in any event, the client could have waived any such claim to privilege. No such course was taken.

It thus appears that the councillors instructing the solicitor were unwilling to acknowledge their role, something which itself is

inconsistent with the case subsequently made, that these were proceedings authorised either formally or informally, by all the

councillors. In the event, councillors Kelly and Doran subsequently acknowledged that “we instructed Fionnuala Cawkhill and

Associates to bring the proceedings” and Councillor Cullen acknowledged that at the last meeting of the 7th September 2000, “it was

agreed to issue the proceedings”. While therefore there could have been greater clarity about the factual circumstances of the

issuance of proceedings, the claim that the identity of the client was privileged, was in the end, futile.

The Judge dismissed the claim for costs against those councillors who had voted against the motion on the 28th of August 2000 since

they could not be held responsible for anything done on foot of the motion. Furthermore, he pointed out that the Manager/Council’s

application was misguided in seeking to hold those who had voted for the motion of the 28th August 2000 responsible for the costs of

the proceedings. This was because it was part of the Manager’s own case that the motion of the 28th February was itself ineffective

under s.4, and in any event and on its face it did not purport to authorise the commencement of proceedings in the name of the

Council, but rather to direct the management to commence those proceedings. Those who voted for the motion could not, by that

act alone, be held responsible for the issuance of the proceedings when the issuance of those proceedings was not authorised by the

motion.

The High Court was faced with unsatisfactory affidavit evidence. On the one hand Councillor Bourke, the Fine Gael representative in

the group which had sought legal advice, was vehement that he had no instructions to agree to the issuance of proceedings and had

not done so, and indeed had not been present at the critical meeting or meetings of the 6th or 7th of September. On the other hand,

Councillor deBurca stated that she understood that the proceedings had been commenced on behalf of all councillors. There was

however, no cross-examination in the High Court. In the end the Court concluded, correctly it seems to me, that the instruction to

issue proceedings came from Councillors Doran, Kelly and Cullen, and instructions were given because of the impending time limit for

the commencement of judicial review proceedings to seek to quash the permission, and that furthermore, although the proceedings

may have been discussed whether formally or informally with other councillors, the proceedings could not be said to have been

authorised by the remaining councillors. Accordingly, the High Court Judge ordered that the County Manager was entitled to recover

his costs against the three named councillors and subsequently purported to vary the order for costs made in favour of the Notice

Party, so that now those costs were also to be paid by the three councillors. The order for costs made against the councillors, is

undoubted substantial, all the more so because of the protracted proceedings in relation to the issue of costs.

The Appellants’ Contentions on this Appeal.

Four arguments have been addressed to the Court. First, it was suggested by counsel on behalf of Councillor Kelly, that the order

joining his client (and the other councillors), was in itself wrong and should be set aside. Of course, if correct, this would mean that

there could be simply no question of the award of costs against any of the councillors. It was argued that the order was made

without notice to the councillors (as indeed it was) and that the position of the councillors was different, and worse once joined to

the proceedings, since they were at risk of an order for costs, a risk which eventuated in the case of the three Appellant councillors.

It was argued, accordingly, that natural justice required that the affected parties be given notice of the proposed application, and

allowed to contest it in advance.

In my view, this argument is plainly misconceived. There is no principle that before the issuance of proceedings, a proposed defendant

has to be given the opportunity of arguing that proceedings should be issued. If there were, then the standard procedures for both

the commencement of proceedings against defendants and the joinder of third parties, would themselves be plainly and flagrantly

deficient. Before any order for costs is made, the party will have the opportunity of arguing that no such order should been made.

Indeed, that is exactly what transpired over such an unsatisfactorily protracted period in 2004. In the circumstances, there does not

appear to me to have been any breach of natural justice in the procedure which was followed here.

It was next asserted on behalf of the first and second named Appellants (and these submissions were in turn adopted by counsel on

behalf of Councillor Kelly) that there was no power to join the councillors as Applicants in this case, or if there was such power it was

not appropriate to do so. Yet again, this issue was unnecessarily complicated by the confusion which reigned in the High Court. It

does not appear that the precise legal basis for joinder was ever specifically addressed: the only reference to the power of joinder

was made by counsel on behalf of the County Council. It is not apparent therefore that this objection was raised in the High Court.

However because the matter seems to have been touched on in some form in the High Court I propose to deal with it here.

It is now argued on behalf of the Appellant councillors, that Order 15 Rule 13 is the relevant rule and permits the joinder of additional

parties so that the court “may in every cause or matter deal with the matter in controversy so far as regards the rights and

interests of the parties actually before it”. However, it is argued that it does not extend to the situation here where it is said that

the judge was effectively functus officio having dealt with the “matter in controversy” and determined the rights and interests of the

parties actually before it. This is not to my mind, persuasive. First, the issue of costs was still live at the time of joinder. Costs were

at that stage, an issue which the court had to decide, and the councillors were being joined for the very purpose of determining

whether or not they should have to bear some or all of the costs of the proceedings. Thus the identity of the correct Applicant was

an issue which had a bearing of the question of costs which remain to be decided. Second, and as it happened, the issue of the

entitlement to commence proceedings had been raised in the substantive proceedings. In truth, this case created a highly unusual

and it is to be hoped, almost unique circumstance. This was not a situation in which a person who himself having no cause of action,

encouraged or controlled litigation by another party who has such a right of action. Nor is it a case where proceedings are

commenced by a party and it is subsequently discovered that they lack the legal title to commence them, and/or that there was a

technical defect in the constitution of the proceedings which were otherwise properly commenced. Here, an attempt was made by a

party to commence proceedings in the name of another legal entity which the High Court determined, correctly in my view, they had

no entitlement to do, whether as a matter of law or fact. In such circumstances, the Court was seeking to identify the “true”

Applicants i.e. the parties who had wrongfully commenced the proceedings in the name of another legal entity. The Appellants were

not strangers to the proceedings: on the contrary, they were the very people who had instructed the commencement of proceedings,

and presumably given instructions for the conduct of the litigation. In those unusual circumstances, it was in my view, entirely within

the jurisdiction of the court to seek to ascertain who it was had commenced the proceedings and should therefore be responsible for

the costs.

For these reasons, it is not necessary to determine whether Order 15 Rule 13 can be used more generally to join a stranger to

proceedings for the purposes of directing that they should pay the costs. There are it might be thought some technical difficulties

with such a course, not expressly adverted to in the argument. Order 15 Rule 13, itself provides, that no person should be added as a

plaintiff without his own consent in writing thereto. It also provides that the proceedings shall only be deemed to have begun against

such a person on the making of the order joining such party. However, no point was made in relation to these provisions and it is not

necessary or appropriate to consider them further. In my view, the jurisdiction of the Court to control its own proceedings is

sufficiently extensive to permit the procedure which was adopted in this exceptional case.

The Appellants also argue that on general principles, no order ought to have been made against them and rely on the authority of

McIlwraith v Fawsitt [1990] 1 IR 343. In my opinion McIlwraith v Fawsitt does not assist the Appellants: if anything the contrary. In

that case, as often happens, judicial review proceedings were brought, which were not contested by the decision maker (in that case

a Circuit Court Judge) or the beneficiary of the decision (the second named Respondent). It was accepted that as a matter of law,

the Applicant was not entitled to costs against the judge. Accordingly, the High Court judge having initially made an order against the

Respondent judge varied the order and directed that the costs should be paid by the Attorney General. The Attorney General was

subsequently added as a party and appealed the order. The Supreme Court set aside the order, Finlay, C.J. observing inter alia, “I am

satisfied so far as it made costs payable by the Attorney General, that the order was bad in that the Attorney General was not a

party to the proceedings nor were they proceedings in which he had any interest”.

It should be apparent that the facts of McIlwraith were significantly different from those which occurred here. The Attorney General

had never been involved in the case and had not been added as a party or indeed given any notification or opportunity to argue the

issue, before costs were awarded against him. That order was plainly bad. Here however, not only were the councillors joined prior to

the making of any costs order, they had also been involved in the substantive proceedings. Indeed, the burden of the High Court

judge’s order in this case, was that the Appellants were in truth the Applicants in the proceedings. McIlwraith v Fawsitt says nothing

about such circumstances. Indeed it is perhaps implicit in the formulation of Finlay, C.J. just quoted, that had the Attorney General

had an “interest” in the proceedings, whether a party or not, it might have been appropriate to order costs against him. Here of

course the councillors were a party to the proceedings having been joined, and these were proceedings in which they clearly had an

interest, and indeed had initiated.

This interpretation of the judgment in McIlwraith v Fawsitt is only a very small straw in the wind, but it does lead to a consideration

of the question of whether there exists a broader jurisdiction to direct that the costs of proceedings should be borne by a person not

otherwise, or formally, a party to the proceedings. This was a topic touched on only fleetingly by the Appellants in their submissions,

and not addressed by the Respondent at all. The issue has been raised in Irish litigation in the context of a claim for costs against an

insurance company which had supported unsuccessful litigation in the name of its insured who himself was not in a position to

discharge the order of costs made against him. The issue has raised in Curran v Finn [2001] 4 IR 248, but not litigated to conclusion

there. That case has been the subject of the comment by Dr John White in (2003) 38 Irish Jurists 352. That article surveys recent

decisions in the United Kingdom the most important of which are Aden Shipping Ltd v Interbulk Ltd [1986] AC 965, and Murphy v

Young & Co. Brewery [1997] 1 All ER 518. The issue has also been discussed, perhaps more appositely in Australia in Forrest Pty Ltd v

Keen Bay Ltd (1991) 4 ACSR 107 and affirmed sub nom Knight v FP Special Assets Ltd (1992) 107 ALR 585. It also appears the issue

has received further consideration, both judicial and legislative, in Australia. The problem is by no means easy, and since it may turn

on a precise interpretation of the provisions of the Judicature Act and the Rules of the Superior Courts, and since we have not heard

argument on this issue I do not wish to express any view upon the existence of any such broader jurisdiction to direct that non

parties should bear the cost of litigation. The existence however of such proceedings in other jurisdictions points to the possible

injustice that otherwise might be created, if in appropriate cases, it was not possible to fix an individual costs, in circumstances

where that was the appropriate solution. However, this case is, as I have already observed, much narrower. I am content to rest this

judgment upon the existence of the jurisdiction to identify the true party in litigation which has been conducted wrongly in the name

of another.

The next argument advanced by counsel on behalf of the Appellants was ingenious. It was argued that the High Court had proceeded

on an entirely false basis, namely that the County Manager was the only person who could lawfully authorise the commencement of

proceedings on behalf of the Council. It was argued however that s.3 of the Borough Funds (Ireland) Act, 1888, authorised the

commencement of proceedings by Resolution of the Councillors and that the 1940 Act, which established the management system,

identified the exercise of power under s.3 as a reserved function to be performed by the members of the Council.

Section 3 of the Borough Funds (Ireland) Act, 1888, provides:

“When in the judgment of the governing body in any district it is expedient for such governing body to promote or

oppose any local or personal bill or bills (a) in parliament, or to prosecute or defend any legal proceedings necessary for

the promotion or protection of the interests of the inhabitants of the district (b), it shall be lawful for the first governing

body to apply the borough fund, borough rate, or other public funds or rates under the control of such governing body,

to the payment or the costs and expenses attending the same …”

It will be noted that the section itself only deals with the payment of funds, but the Appellants point to a footnote in Street that:

“The present Act does not in terms confer power to engage in legislation or litigation. It provides only for costs. Possibly

the distinction is unreal.”

The Appellants point out that in s.17 of the Local Government (Ireland) Act, 1898, the powers conferred on a governing body by the

Borough Funds (Ireland) Act, 1888, were extended to County Councils. The chain is completed by the provisions of the second

schedule to the 1940 Act, which identifies the reserved functions of the County Council and includes at paragraph 7:

“The powers conferred by the Borough Funds (Ireland) Act 1888 … in relation to promoting or opposing legislation or in

relation to the prosecution or defence of any such legal proceedings as are mentioned in section 3 of the said Act.”

The argument however is put rather tentatively in the Appellants submissions. It is said that:

“… It is not accepted that the suggestion in the learned trial judge’s judgment that it was a matter for the County

Manager to issue proceedings was necessarily correct. In fact, there are good grounds for contending, it is submitted,

that the decision is one that may be made (at least in relation to matters that are non executive functions) by the

elected members.”

This, it will be noted, falls somewhat short of a positive assertion. Counsel for the Appellants cheerfully acknowledges that if this

argument is correct, there has been a general misconception on the part of local authorities, and their advisers, as to the manner in

which proceedings should be initiated. If indeed a resolution by councillors has been the legal basis for the initiation of proceedings by

a local authority since 1940 (notwithstanding the existence of the City and County Management Act), then it is more than surprising

that it has not been adverted to somewhere, either in text books or commentary, or in the extensive litigation that has been engaged

in by local authorities since that time. I would be extremely reluctant to seek to resolve this issue on the limited factual and legal

basis upon which it is presented in this court particularly because it has no wider significance than the resolution of this case, since

by the Act of 2001 it appears clear that legal proceedings can only be initiated by a decision of the County Manager something which

indeed accords with the practice which appears to have applied prior to 2001.

In any event, I do not think that the argument can properly be raised by the Appellants in this case. In the first place, it was not

raised at all in the High Court. Second, and even more formidably from the Appellants point of view, it does not appear to have been

adverted to by the councillors when during July and August they passed the different motions in relation to this matter. Third, and

perhaps as a consequence of the foregoing, none of the motions passed by the councillors purport to authorise the initiation of legal

proceedings in the name of the Council. The most relevant motion, that of the 28th of August, was clearly directed under s4, towards

the discharge of the management function which could, in appropriate circumstances be directed by the members of the County

Council under that section. Thus, even if this Court were to hold with the Appellants argument on the meaning of the Borough Funds

Act and its place in local authority law after 1940, it still could not avail the Appellants. The truth is that when these proceedings

were issued, there was no resolution of any description authorising them to do so. The only extant resolution, that of the 28th of

August, was plainly an inadequate basis, on any view of the law, for the initiation of proceedings by the councillors.

Finally, the Appellants fall back on a plea that the Court ought not to have distinguished their role from that of the other councillors.

They argue that these proceedings were supported by the other councillors collectively, and while the proceedings were in being, no

dissenting voice was raised within the County Council. On the contrary, as is set out above, on occasions some councillors did seem

to refer to the proceedings with some approval. It must have been plain to all and sundry that these were proceedings which had not

been initiated by either the County Manager or the County Secretary. It follows, it is argued, that the general body of councillors

were entirely supportive of these proceedings, and that the Court was wrong to seek to differentiate between the three councillors

who appear to have given the relevant instructions, and those other councillors who were broadly supportive of the proceedings. The

Appellants point, with some merit it must be said, not only to the proceedings in the Council, on the 10th December 2000 but also to

the formulaic nature of the affidavits sworn by the councillors. It is pointed out that the remaining councillors in seeking to exculpate

themselves seek to deny something which is not alleged. Each of the councillors goes to some lengths to say that they have not

given instruction that proceedings be commenced on their behalf as individuals. They do not say however if they authorised or

supported proceedings in the name of the County Council.

As counsel for the Appellant observed, success has many fathers and failure is an orphan. There is considerable difficulty in this

matter because the investigation of the circumstances in which the proceedings were initiated only came into focus when the

proceedings themselves had already been lost, and the only live issue was liability for costs. As I have observed earlier, it is

interesting to speculate as to the likely attitude of the relevant councillors had this inquiry commenced earlier in the process and

while it still appeared possible that the proceedings would succeed. There is no doubt that the scramble away from the disaster of

these proceedings has been less than edifying. It is also remarkable that notwithstanding a proliferation of affidavits, none of the

councillors appeared to address the critical question. In truth, the liability for costs arose in this case because after the motion of the

28th August 2000 and when it became clear management was not going to initiate proceedings, the step was taken – and once again

the passive voice is appropriate – of initiating proceedings notwithstanding the fact that the motion had not achieved it stated

purpose. That fateful step gave rise to the proceedings, and consequently a potential liability for costs. Yet none of the councillors

address what it is they knew during the period between the 28th of August motion and the 7th of September initiation of proceedings,

in respect of that decision.

However, this absence of information was not confined to the councillors who succeeded in exculpating themselves. It is even more

striking in my view that the three councillors who were undoubtedly involved in the decision to initiate the proceedings have not

explained their conduct. Were they aware of the fact that the Manager was not going to obey the motion? It would appear they must

have been. Were they aware therefore that the motion on its face could not authorise the separate initiation of proceedings? On

what basis did they instruct the initiation of proceedings? Why, if as is hinted in the affidavits, the decision was taken because of the

time pressure created by the time limit for challenging the planning permission, did they not seek to have their actions ratified

subsequently by the remaining members of the Council? Why did they instruct, or at least permit, the solicitor to claim privilege in

respect of their identities? Why if did they not accept the version of events presented by the remaining councillors, did they not seek

to cross-examine those councillors in the High Court? The Appellants affidavits are bereft of information in relation to these matters.

We have not been given any satisfactory explanation for the conduct of the Appellants. It is very hard not to come to the conclusion

that these proceedings were formulated in the way they were, precisely to avoid any risk of individual liability for costs, and to seek

ensure that the costs would be borne by the County Council, and thus the rate payers and the tax payers more generally. That in

itself is not a particularly appealing basis upon which to construct a claim for the exercise of a discretion in favour of the councillors.

There is however no doubt that the proceedings and everything in relation to them have been a disaster for all concerned. The High

Court Judge has also held, that however misguided, and frustratingly obstructive the Appellants may have been, they were acting

bona fide when they initiated the proceedings. This is a significant factor in their favour. Furthermore, the length of the proceedings

is truly extraordinary. It seems particularly harsh that the Appellants should have to pay the full costs of the lengthy proceedings in

respect of costs, much of which was taken up by other councillors seeking to absolve themselves from liability, and indeed succeeding

in obtaining costs against the Manager. Furthermore the course of these proceedings illustrates the great difficulty in seeking to

pursue in satellite litigation, the question of liability for costs. There is a risk, amply illustrated in this case, that the satellite litigation

will dwarf the original issue.

However, there are a number of factors which lead me to the conclusion that the Appellants here cannot escape all liability for some

part of the utterly wasteful and expensive course which, after all, they initiated. In the first place, they have not frankly

acknowledged what it is they did, or explained why they did it. Second, in commencing these proceedings, they sought to target the

County Manager in circumstances where had the proceedings succeeded, his position, both professional and personal could have been

extremely difficult. It is particularly unattractive that they sought to do so in circumstances where they sought to protect themselves

from the costs then being incurred on both sides. Finally, and perhaps most tellingly, the proceedings were initiated heedless of the

costs that they were forcing a citizen and rate payer to incur and the damage that was being done to his business.

Mr Byrne, who it might be noted , has hardly figured in the narrative so far, had an entitlement to have his application for planning

permission determined one way or another on planning criteria. Instead, he found himself embroiled in complex, expensive and

protracted litigation which prevented him from being able to commence a business which he had sought to pursue. That loss is

irrecoverable. It is apparent that no thought was given to seeking to separate the councillors’ squabble with the County Manager from

the question of the entitlement of Mr Byrne to planning permission. In the circumstances, Mr Byrne has appealed the order made in his

favour against the three Appellants. Understandably, he does not wish to pursue individuals and prefers the original order made in his

favour against Wicklow County Council. In this regard, he has in my view, both practical and legal merit. There was I think no basis

for amending the order made in his favour. Furthermore, Mr Byrne was the one person who could legitimately identify Wicklow County

Council (whatever its constituent parts) as the source of all his difficulties. In the circumstances, I would allow his appeal and

substitute an order that he should be entitled to his costs against the Respondent, who is in this respect indemnified by the Council.

As for the Appellants claim to set aside in its entirety the order for costs made against them in favour of the Respondent, it does not

appear to me for the reasons already set out above, that the there is legal merit in their claim. Furthermore, I consider that the trial

judge was entitled to distinguish between the position of the three Appellants and the other county councillors. However, in all the

circumstances, and given the extraordinarily confused circumstances of this case both legal and factual, and perhaps more

particularly in acknowledging the fact that as the trial Judge held, the Applicants were acting at all times bona fide in the belief that

they were entitled to do so in their capacity as local representatives, I have come to the conclusion that the quantum of the costs

should be reduced somewhat, and that the Appellants should be directed to pay the Respondent’s costs on the basis of a two day

hearing when such costs be taxed in default of agreement. I would also propose subject, to the submissions of the parties, to make

no order as to the costs of the proceedings in this court other than in respect of the Notice Party Mr Byrne. The end result will be,

that the County Council will have to bear the Respondent’s costs (other than the two days costs which he is entitled to recover

against the Appellants), and also the costs of the successful county councillors and the costs of Mr Byrne. For their part, the

Appellants will have to pay the two days costs, and may have incurred their own costs in defending these proceeding.

This is an undoubtedly a very sorry situation from the point of view of all concerned. It should act as a salutary lesson to those who

insist on seeking to litigate matters of supposed principle, particularly when they seek to do so with other people’s money.