The Supreme Court has dismissed James Kenny’s action seeking to set aside a High Court decision that refused him leave to challenge planning permission for Trinity College Dublin’s redevelopment of Trinity Hall in Dartry.
In a judgment delivered on 10 April 2008, Fennelly J allowed an appeal by the Provost, Fellows and Scholars of the University of Dublin, Trinity College. Macken J and Peart J were also listed on the Court. The appeal concerned the High Court’s refusal to strike out Kenny’s action. The Supreme Court concluded that the amended statement of claim disclosed no reasonable cause of action and that the action was frivolous and vexatious. It also concluded, alternatively, that the case should be dismissed under the Court’s inherent jurisdiction because it was certain to fail.
Kenny alleged that Trinity had misled McKechnie J during a 2000 planning judicial review by concealing that it had applied for a fire safety certificate based on plans showing boilers in a basement. He argued that this information supported his claim that Trinity had no genuine intention to install boilers in the plant rooms discussed at the planning hearing, and that the earlier refusal of leave should be set aside so the judicial review could be reheard. These were allegations, not findings of fraud.
The Supreme Court explained that setting aside a final judgment for fraud requires deliberate dishonesty, fraud that affects the decision in a fundamental way, and precise pleading of the alleged fraud. It accepted that Kenny’s amended pleading alleged intentional deceit with sufficient particularity to meet the relevant pleading requirements. That did not establish that the allegations were true or that they could succeed.
The Court examined McKechnie J’s earlier judgment and found that he knew the basement option had been raised at the planning hearing and ruled out by the inspector. The judge had considered the dispute about boiler locations but regarded those details as matters dealt with in the planning process; he did not consider them something he had to resolve in the judicial review. The Supreme Court held that the fire safety certificate application was immaterial to the validity of the planning permission before McKechnie J. A basement proposal could not have proceeded without further planning permission, and its existence would not have affected the Board’s grant of permission.
The Supreme Court therefore allowed Trinity’s appeal and dismissed Kenny’s action. It did not rehear the original judicial review or decide the separate appeal concerning a compliance order, which the judgment said was pending.