The High Court has dismissed Jackson Way Properties Limited’s application to compel Dún Laoghaire/Rathdown County Council to pay it €7,010,700 pending resolution of a dispute over land acquired for the M50 motorway.
Mr Justice Binchy ruled on 9 October 2015 that the company had not shown that the amount it sought was indisputably due under a 2003 arbitration award. He also found that it had not met the test for a mandatory injunction or made a meaningful argument that damages would be inadequate if it later succeeded in its case.
The council acquired 8.168 hectares from Jackson Way under a compulsory purchase order made in 1998 and took possession in October 2001. An arbitrator awarded the company €12,860,700 in 2003, based on its claim to an unencumbered freehold title. The award included €9,691,000 for the land itself.
The title was subject to a registered restrictive covenant. Jackson Way had not established whether the covenant affected the acquired land, and the court said the arbitration valuation assumed that it did not. The company later brought separate proceedings against Thomas Kevin Smith and Mairead Smith seeking declarations that the covenant did not apply to the land or could not be enforced by them. Those proceedings were listed for hearing on 1 December 2015.
The Smiths had lodged a €5,850,000 compensation claim with the council in 2009 concerning their alleged interest. Jackson Way argued that, even if the Smiths succeeded, the council would still owe it at least €7,010,700 from the arbitrator’s award. It asked the court to order payment while the title and compensation disputes continued.
The council disputed that calculation. It argued that the Smiths’ claim could change and that the award was based on a title Jackson Way had not proved it could transfer. The judge said that if the covenant restricted development at the date the council served notice to treat, the 2003 award would not value Jackson Way’s actual interest. A fresh valuation and, if necessary, a further arbitration could then be required. Ordering payment now could therefore result in a substantial overpayment.
The court also noted that the amount sought did not correspond to a separately identified, undisputed part of the award. It dismissed the application, without deciding whether it had an inherent jurisdiction to order the payment sought. The ruling concerned this interim application; it did not determine the underlying compensation claim or the separate covenant proceedings.