Council must pay costs of 10-year court battle

A 10-YEAR court battle rooted in a proposal to convert a milking parlour into a pet crematorium has ended with a Supreme Court decision ordering Wicklow County Council to pay substantial costs of a row between councillors and the county manager.

While three individual councillors – Thomas Cullen, Patrick Doran and Nicky Kelly – could not escape some liability for some of the “utterly wasteful and expensive course” they had initiated against the manager, their costs bill should be reduced somewhat, Mr Justice Donal O’Donnell also ruled.

The proceedings were a “disaster” and had led to “a very sorry situation for all concerned”, the judge added. The case, he said, “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 peoples’s money”.

He was giving the three judge court’s judgment on costs issues arising from the unsuccessful challenge by the council to a July 2000 decision of the county manager granting planning permission for the conversion of a milking parlour for use as a pet crematorium at Oghill, Redcross.

The High Court decision upholding the manager’s permission was given in 2003 but the question of who should pay the costs then became subject of a bitter battle among councillors. In 2004, the High Court ruled those liable for the costs of the action against the manager were councillors Nicky Kelly, formerly Independent but now Labour Party; Pat Doran of Fianna Fáil; and Tommy Cullen, a former member of Labour.

No costs order was made against Councillor Deirdre De Burca, notwithstanding her apparent support for the position adopted by Mr Kelly, the court directed.

The High Court found the proceedings instituted in the name of the council were at no time authorised by members of the council and were commenced on the instructions of the three members.

Giving the Supreme Court judgment on the appeal by the three councillors against the costs orders, Mr Justice O’Donnell said it was difficult to credit that “virtual civil war” had raged in Wicklow County Council in summer 2000 over the proposal by Andrew Byrne for the pet crematorium.

The dispute had followed a long, tortuous and costly path to the Supreme Court, almost 10 years later and there was no doubt the proceedings “have been a disaster for all concerned”.

The length of the proceedings was “truly extraordinary” and the row over liability for costs amply illustrated the possibility for such satellite litigation to dwarf an original issue, he said.

He ruled the High Court was entitled to distinguish between the position of the three councillors and that of other councillors. However, given the High Court finding the three had acted bona fide in the belief they were entitled to do so in their capacity as local representatives and the “very confused circumstances” of the case, he said the quantum of the costs to be paid by them should be reduced.

The length of the proceedings was truly extraordinary and it seemed particularly harsh the three should have to pay the full costs, particularly as much time was taken up with other councillors seeking to absolve themselves from liability, he said.

On the basis of those and other findings, he ruled the three should pay the manager’s costs on the basis of a two-day court hearing.

The net result was the council would have to bear the manager’s costs other than the two days he could seek against the councillors, the judge ruled. The council would also have to pay the costs of other councillors who successfully argued they were not liable, plus the costs of Mr Byrne.


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