The High Court has refused to strike out the entirety of a dispute between Padraic and Bernadette Keane and two defendants over roads and access rights connected with land at Oranhill, Oranmore, Co Galway. It directed the plaintiffs to prepare an amended Statement of Claim limited to issues that remain live.
The application was brought by the first and second defendants, Thomas Considine and Patrick Sweeney. They sought to strike out, dismiss or stay the case, arguing that the pleaded claim depended on a physical gap between roads and the boundary with the plaintiffs’ land, and that no such gap existed.
The proceedings began in March 2009. The plaintiffs sought declarations about completing roads and footpaths, rights to enter the defendants’ land to carry out work, changes to land sale contracts and wayleave deeds, specific performance and damages. They alleged that agreements contained implied terms requiring the defendants to complete roads, footpaths and services to the common boundary, and allowing the plaintiffs to enter the defendants’ land to connect them if necessary.
After the defence was delivered, a joint site inspection established that roads had been built to and beyond the land transfer boundary and that the plaintiffs had physical access to their land. The continuing dispute was principally about whether the roads had been finished to the required standard and what standard the agreements required. The plaintiffs relied on correspondence in which the defendants’ position on access and entry for road works had been disputed. The defendants later said the plaintiffs could use laid roads, while maintaining that the contracts did not specify a construction standard.
The court dismissed the application under Order 19, Rule 28. It said that route requires the court to consider the pleadings, and concluded that the plaintiffs had pleaded a legally recognisable claim that was likely to be established on the pleaded facts. The court also rejected the plaintiffs’ argument that dismissing the defendants’ application would allow it to enter judgment for the plaintiffs: they had not brought a cross-motion to strike out the defence.
Considering the defendants’ separate application under the court’s inherent jurisdiction, the judge found that the plaintiffs had acted in good faith, though they had not made adequate enquiries about conditions on the ground before suing. The defendants were also at fault in their initial investigations and in their correspondence and pleadings. The court found that the plaintiffs had been unintentionally misled, and that the case was not certain to fail in every respect.
The court left for determination whether the contracts contained the alleged implied terms, the standard of completion required, whether the defendants failed to meet it, and any resulting consequences, including damages. It also considered that the plaintiffs could pursue declarations to clarify rights to use, maintain and, where necessary, improve the easements. The court did not strike out the whole claim, dismiss it or stay the proceedings. It ordered that only claims outside those live issues be struck out and directed the plaintiffs to submit an amended Statement of Claim for consideration. The defendants are to have an opportunity to amend their defence; further directions were reserved.