The High Court has allowed a limited inspection of land disputed by neighbouring property owners in Dalkey, County Dublin, restricting access to one side’s solicitor and two expert witnesses.
In a judgment delivered on 7 September 2007, Mr Justice Clarke ordered that the Charltons’ solicitor, or a representative of the firm, together with one horticulturist and one architect, could attend the property by reasonable appointment. The inspection was limited to reporting on the likely timing of works the Kennys were alleged to have carried out, as described in the pleadings.
Gerard and Maeve Charlton claim to own the land legally and beneficially. Pat and Kathryn Kenny contest their title and allege that any title the Charltons may have had was extinguished by adverse possession. The judgment addressed procedural applications in the case; it did not decide ownership or the adverse-possession dispute.
The Charltons had sought to bring a larger group to inspect, including non-expert witnesses and family members. The judge found no adequate basis for allowing non-experts to attend, saying people who claimed to have used the land could give evidence about that without visiting it again. He accepted that an architect and horticulturist could potentially give evidence about when physical or planting works were likely to have taken place.
The Kennys had opposed inspection or sought limits on how expert findings could be shared with witnesses. The judge rejected a proposed restriction on circulation of the experts’ reports, and declined to delay sharing them until factual witnesses had made statements. He said any claim that witnesses had tailored their evidence to match expert observations could be tested in cross-examination.
The court also considered motions concerning inspection of discovered documents and further particulars of the defence. The judge made no substantive orders on those issues, noting that the steps were expected to be completed within a short time. He proposed making no order on either matter on the assumption they had been dealt with within the timeframes discussed at the hearing.
The judge made no order for costs on any of the three applications. He said both sides had contributed to an acrimonious procedural course, with each relying on technical rules when convenient and on normal practice at other times. The judgment did not resolve the underlying land dispute.