The High Court has allowed Donatex Limited and Bernard McNamara to amend their statement of claim against the Dublin Docklands Development Authority (DDDA), while directing a separate hearing on whether their proposed claim can proceed despite potential judicial review time limits.
In a judgment delivered on 29 March 2012, Mr Justice Clarke said the amendment concerned the plaintiffs’ claim that the DDDA lacked statutory authority to enter into the commercial agreement at the centre of the case. The agreement was designed to facilitate the purchase and development of the Irish Gas Bottle site on the Poolbeg Peninsula.
The DDDA argued that the proposed claim was a public law claim that should ordinarily have been brought through judicial review, and that the relevant time limits had passed without an adequate explanation for delay. It also argued that the claim was bound to fail under the Dublin Docklands Development Authority Act 1997, that damages could not follow from an ultra vires contract, and that the long procedural history made a late amendment unfair.
The judge noted that the proceedings had been delayed and that the plaintiffs bore a material part of the responsibility. But the case was not close to trial, and he was not satisfied that the amendment would cause significant further delay if strict procedural measures were imposed.
On the merits, the judge said the 1997 Act did not rule out commercial activity or joint ventures by the DDDA. He also recognised that established case law presented a significant barrier to damages claims arising from an ultra vires contract. However, following the limited hearing available on the amendment motion, he could not safely conclude that the proposed claim had no chance of success. He therefore found it was not bound to fail. That decision did not determine whether the DDDA had acted outside its powers or whether the plaintiffs would ultimately succeed.
The court allowed the amendment but directed that the public law and delay questions be tried as a stand-alone issue before the amended claim could go to a full hearing. The questions are whether the claim should ordinarily have been brought by judicial review, whether a relevant time limit has passed and, if so, whether time should be extended. If the plaintiffs fail on that issue, the amended aspect of the case will not proceed to trial, and the case will continue as though those amendments had not been allowed.
The judge also said the plaintiffs would generally be confined to the proposed amended pleadings, with no further amendment absent wholly exceptional circumstances. He set deadlines for any additional evidence and submissions and directed that the case be listed for mention on 14 May 2012 to monitor the timetable and fix a hearing date.