The High Court has awarded Greg Kavanagh, Fred Daly and Thomas Godkin the costs of an interlocutory injunction application against Córas Iompair Éireann (CIÉ), after finding that the application’s outcome could not fairly be assessed apart from the result of the trial.
The ruling, delivered by Miss Justice Laffoy on 10 December 2009, concerns costs only. The injunction application was never determined. The judge ordered that its costs, to be taxed if the parties could not agree them, be paid to the plaintiffs.
In an earlier judgment delivered on 9 October 2009, the court held that the plaintiffs had an accommodation way over Flights Level Crossing to reach agricultural lands on the eastern side of the Dublin to Arklow railway. The right covered access on foot and with vehicles, farm machinery and equipment, including machinery needed to drain the land for agricultural use. The court had postponed permanent injunctive relief because the parties had asked it to address the declaratory claim first and discuss safety arrangements if a right was established. Those discussions had not taken place because CIÉ decided to appeal the substantive decision.
The plaintiffs’ 2007 interlocutory application sought to remove or provide access through barriers and restore their use of the crossing while the case was pending, subject to necessary safety precautions. The hearing appeared in the motion list, but the parties and the court moved toward an early hearing of the substantive case. The application was ultimately transferred with the action to be listed for hearing, leaving its costs to the trial judge.
CIÉ argued that it would have defeated the injunction application, citing railway safety, the balance of convenience, damages as an adequate remedy, and concerns that the land might be developed as a wastewater treatment works. It also relied on the plaintiffs’ failure to provide a requested method statement and on earlier proceedings concerning access by an underbridge. Those proceedings ended in a June 2007 settlement under which €75,000 was paid to Iarnród Éireann.
Justice Laffoy said the affidavits before her did not establish that the injunction application was premature or that it would have been refused. She described the costs question as exceptionally difficult because the application had not been decided as a standalone matter. In her view, the central issue was whether the plaintiffs had a right to use the crossing; the trial had established that they did, and CIÉ had wrongly denied that right. The plaintiffs were therefore entitled to the costs of taking the application as far as it had proceeded.