The High Court has given James Kenny an opportunity to revise his proposed claim against Trinity College, after finding that his existing summons did not show how he could obtain the relief sought.
Mr Justice Clarke’s judgment, delivered on 17 October 2008, concerned an application for leave to bring proceedings against the Provost, Fellows and Scholars of the University of Dublin, Trinity College. A March 2006 order barred Mr Kenny from bringing proceedings against the College without the court’s permission. The judge said Mr Kenny had issued his summons believing it was outside that order. The court treated his application as a request for leave to bring the claims set out in the summons.
The proposed claim sought to set aside four earlier court orders for costs, reverse expenses arising from attempts to enforce those orders and seek damages. An associated request to stop enforcement of the costs orders had become irrelevant after the Supreme Court finally refused Mr Kenny’s application to reopen an earlier judicial review leave application.
Mr Kenny told the court that a July 2008 European Court of Justice judgment concerning Ireland’s environmental assessment rules supported his position that the development at Dartry, which he had previously challenged, was unlawful. He argued that this could provide grounds to set aside costs orders made after his earlier challenges failed. Trinity College opposed leave.
The judge said he could not see, on the existing summons and without a statement of claim, how Mr Kenny could obtain the relief sought. He identified issues that would need to be addressed, including how an alleged breach of EU environmental rules could affect the development’s legality under Irish law, whether earlier decisions could be reopened following a later ECJ ruling, and whether procedural time limits allowed a renewed challenge. He also noted an earlier finding that an appropriate impact assessment had been carried out, and the College’s argument that some costs arose from unsuccessful attempts to reopen earlier proceedings on grounds of fraud.
Clarke stressed that his discussion of Kenny’s proposed arguments was only an assessment of whether they might be arguable, not findings of law or fact on those issues. He did not grant leave to proceed or set aside any costs order. Instead, he allowed Kenny to file a draft revised summons and draft statement of claim explaining how he said he could overcome the identified difficulties. The judge said he would then assess whether the case was stateable.