The Supreme Court has dismissed Kevin and Karen Tracey’s appeal against the High Court order striking out their damages proceedings against Ireland, the Attorney General and Dublin City Council. The Court concluded that the couple had not shown an arguable cause of action against either the State respondents or the Council.
The appeal concerned the High Court’s decision on 26 March 2012 to dismiss the proceedings under Order 19, rule 28, on the basis that the claim disclosed no reasonable cause of action. The Traceys had not appeared at that hearing. The Supreme Court judgment, delivered by Mr Justice John MacMenamin on 30 July 2019, addressed whether the High Court was entitled to proceed and whether the pleaded claim could succeed.
The proceedings arose from matters connected with the planning permission later quashed in White v Dublin City Council [2004] 1 IR 545. The Traceys claimed damages, including €1.75 million, alleging negligence and breach of duty, among other losses. The judgment records that they argued they had a constitutional right to build a house under the planning permission and that the State was vicariously liable for the Council’s actions.
The Supreme Court said the uncontroverted evidence was that Kevin Tracey had become ill in July 2010, required hospitalisation and was unable to attend court. It noted that the circumstances of his non-attendance were not, in themselves, fatal to the appeal. However, it said the Court could also examine whether the claim was arguable and whether it was bound to fail.
As to the State respondents, the Court found that the Traceys had not identified a real cause of action arising from the planning permission. Because that permission had been declared invalid, they had no constitutional right to build under it. The judgment also said the State could not, in the circumstances pleaded, be held vicariously responsible for the actions of Dublin City Council, a separate legal entity.
On the Council claim, the Court said no distinct legal basis had been advanced to show that a negligence or breach-of-duty case could succeed. It referred to authorities on the duties of public bodies exercising statutory planning functions. The Court did not decide whether the claim was time-barred or amounted to an impermissible collateral attack on the earlier White judgment; it said those questions did not need to be considered.
The Supreme Court dismissed the appeal. The High Court’s strike-out and costs orders therefore remained in place.