Dun Laoghaire Rathdown County Council v Shackleton
Supreme Court Mrs. Justice Denham, Chief Justice Keane, Mrs Justice Denham, Mrs Justice McGuinness, Mr. Justice Murphy
17/06/2002 37/02 [No. of pages 10] [FL5645]
Arbitration, Injunction

Injunction - Arbitration - Interlocutory - Compulsory acquisition compensation claim - Injunction to restrain arbitration - Flood tribunal - Unjust enrichment claim - Whether plaintiff established any cause of action - Whether unjust enrichment claim justified

Facts The High Court granted an interlocutory injunction to the applicant restraining the first named respondent from proceeding with an arbitration on determining a compensation claim arising from a compulsory acquisition of property. The respondent appealed. The injunction was granted pending the outcome of matters arising from the final report of the Flood Tribunal. The cause of action was based on unjust enrichment.

Held The Supreme Court (Keane CJ; Denham and Murphy JJ) in delivering its ex-tempore judgment formed the view that the interlocutory injunction should never have been granted. The plaintiff failed to show any case to be tried between the parties. The claim of unjust enrichment was examined and found that the plaintiff based this on the possible outcome of a tribunal sometime in the future was too vague. The appeal was allowed and the High Court order substituted with an order dismissing the claim for interlocutory injunctive relief.


Keane C.J.
Denham J.
Murphy J.






Ex-tempore Judgment of the Court delivered the 17th day of June, 2002 by Keane C.J.

This is an appeal from a judgment and order of the High Court (Mr. Justice O'Sullivan), in which he granted an interlocutory injunction restraining the first named defendant to the proceedings, that is Mr. John R. Shackleton, a property arbitrator, from proceeding to hear and determine the compensation claim of the second named defendants Jackson Way Properties Limited, arising from the compulsory acquisition of part of its land for the South-eastern motorway, including injurious affection to its retained land, pending the final report by the sole member of the tribunal of inquiry into certain planning matters and payments affecting the lands of the second named defendants at

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Carrickmines in the County of Dublin, that is Mr. Justice Flood, until the trial of this action in the meantime. This order was made subject to a proviso that, in the absence of agreement between the plaintiff and the second named defendant, arrangements should be made for the assessment of the compensation admittedly due by the plaintiff to the second named defendant, counsel for the first named defendant having indicated that he would be prepared to make an interim award in that regard, that is the arbitrator having indicated that he would be prepared to make an interim award.

I am satisfied that this is an interlocutory injunction which should never have been granted. It is, of course, the case that the High Court enjoys a power to grant an interlocutory injunction preserving the status quo, pending the determination of the action where it is satisfied that there is a fair question to be tried and that the balance of convenience points in favour of the injunction being granted. That, of course, all rests on the premise that the plaintiff in the proceedings have not merely, one might say, an arguable case, that test would now, I think in modern conditions, be regarded as setting the threshold at a somewhat low level, but that there is a fair question to be tried between the parties.

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I am satisfied in the present case that the plaintiffs have entirely failed to show that there is any question to be tried between the parties in these proceedings, in the manner in which they have framed their proceedings. It is a little difficult to categorise them at this stage, because quite remarkably they have never proceeded beyond the plenary summons stage. The plenary summons was certainly issued some time ago, I think in January of this year at the latest. So one has to spell out what their claim is from the plenary summons itself, which claims a variety of reliefs from the notice of motion and the affidavits and indeed from the submissions of counsel both to the High Court and this court.

Their cause of action is given the generous title of unjust enrichment and that of course, is well known to be a somewhat generous and somewhat necessarily, perhaps imprecise phrase that has become more usual in the law than it once was. That is not to say, of course, that such a cause of action does not exist, it undoubtedly does exist and in a large part it has been formulated by the courts it would be correct to say in order to get rid of the old fiction that, where it was inequitable for somebody to retain money because in the particular circumstances it would be unjust and inequitable that they should retain money which belonged to another person, the courts invented the fiction of an implied promise to repay and an implied contract between the parties. In this

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jurisdiction since the well known judgment of Mr. Justice Henchy in the East Cork Food case, the courts have departed from that and as I have said in such cases where the doctrine is appropriate it should be treated for what it is, as an unjust enrichment claim.

Nothing of the sort arises here, because one begins with the stark fact that not merely has the been no payment of any money by the plaintiff/local authority to the defendants: on the contrary, they have ensured that there would be no such payment by issuing these proceedings and obtaining an interlocutory injunction to restrain the arbitrator from proceeding with the arbitration. This is, in circumstances where they accept that they have served a notice of entry, as they are perfectly legally entitled to do, and are in possession of the land. So this arbitration, which they themselves say is concerned with a claim for the largest sum of money in respect of any of the land which they have required for the purpose of this motorway, they seek to hold up at least until the trial of the action and, as originally envisaged, until the tribunal presided over by Mr. Justice Flood shall have delivered its report. That is on the basis that the tribunal in question, which I shall refer to as the Flood Tribunal, issued or made a statement to this effect:

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"the tribunal has received information to the effect that substantial monies were paid to elected members of Dublin County Council by and on behalf of Paisley Park Investments Limited and/or Jackson Way Properties Limited [the second named defendants] for the purpose of securing the rezoning of lands at Carrickmines being the land comprised in Folio 4940 County Dublin prior to the making of the 1993 Dublin County Development Plan and the current Dun Laoghaire Rathdown Development Plan. The tribunal is inquiring into this matter pursuant to paragraph AS of its terms of reference."

That is the only factual basis for the claim, not that the defendants have been unjustly enriched, because they have not received any compensation, - on the contrary, their land has been taken from them and the plaintiffs are in possession of it - but for the allegation that at some time in the future when the Flood Tribunal reports if the Flood Tribunal concludes that in its opinion this indeed has taken place, at that stage, not that that matter will have been determined against the second named defendants in any judicial sense, because it will not have been, but that there will then or may be evidence in existence which would entitle them to make a claim that the defendants had been unjustly enriched.

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I think it is not overstating matters to say that, reduced to simple language, that means that there is not, in legal terms, a scintilla of evidence in existence that the defendants did anything improper in relation to the rezoning of these lands. Yet, it is on that basis that the plaintiffs sought and indeed, obtained an interlocutory injunction in the High Court and I am satisfied that they obtained it in circumstances where there was simply no cause of action demonstrated to the court. One does not create or establish a cause of action by saying that in the future, dependent on certain contingencies, dependent on evidence which is not now available to me but which I think may, at some time in the distant future be available to me, I may be able to establish a claim of future, even at that stage, future, unjust enrichment. That provided no cause of action of any sort. It is not a case of there being a fair question to be tried: on that view of the matter there was no question to be tried.

It also appears, remarkably enough, that if the plaintiff's claim is correct, well founded in the factual sense, that is, if the rezoning was improperly obtained by the defendants, the consequences, far from the defendant's claim for compensation being increased, would be that it would be actually reduced, in the events that have happened, because it is quite clear that this is a claim, for the value of land taken for the purposes of the motorways, some 22 acres I think. In relation to that, of course, it would be assessed on the basis of both

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the rezoning of the Northern lands for industrial use and the existing zoning of the Southern lands for agricultural use and, to that extent the amount of compensation would be increased. There is also a very substantial claim for injurious affection and of course, Mr. O'Neill on behalf of the defendants accepts that he has to establish that claim. He has to establish that there would have been some prospect of residential development on all of these lands previously zoned agricultural and he would hope to establish that and establish a claim for injurious affection but of course he would have to set off against that the value of the lands zoned for industrial development, which have an actual value and in the result, if anything, his compensation would be reduced in value. That certainly appears to be the position and of course, in saying that I do not say in any way what the arbitrator, and that will be a matter for him, decides in relation to all this. This court can only decide the matter as the High Court could only decide the matter on the basis of what the evidence is and that is certainly the evidence of the valuer retained by the defendant and it is the only evidence as to value which was before the High Court or this court.

Of course, the court using its common sense would know perfectly well that agricultural land solely used for agricultural purposes would have the lowest value of all virtually in the greater Dublin area and that residential use or industrial use would of course, be a very significantly higher valuation that

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lands zoned for agricultural purposes only. Some attempt was made to suggest that the plaintiff county council were prepared to approach the matter on the basis that the Northern lands - the lands the subject of the Flood Tribunal Inquiry, if I can put it like that, as to a possible improper procurement of a rezoning to industrial use-the arbitration could be approached on the basis that those lands should be treated as zoned agricultural and that the arbitration could proceed on that basis.

If that offer were being genuinely and bona fide made by the county council, then if the valuer on behalf of the defendants is correct, it would mean to that extent an increased value in the land because the lands would no longer be zoned industrial and, on that view, they would have a lesser residual value. But when one looks at what was actually said at the High Court - and this was said for the first time in the High Court, as Mr. Collins on behalf of the plaintiff concedes - what was said was that it was solely agricultural value which the county council were prepared to agree to at that stage. A valuation could take place solely on the base of agricultural value and the plaintiffs would concede, if concession is the right word for this, that the defendants would be entitled to be paid that amount but no more. Now that is apparently as recorded, the submission in the High Court. But it is sufficient to say that whatever approach was being adopted and that appears to have been the approach

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adopted at the eleventh hour by the plaintiff county council, no such indication was given at any stage prior to the hearing in the High Court. One only has to read the plenary summons, the affidavits and the correspondence, to know that the county council were seeking to restrain that payment of any money whatever, to the defendants until such time as the Flood Tribunal had reported on these lands. It is accepted that no one knows how long that is going to take. The tribunal has been sitting as a matter of public record for quite some time now. It is likely to continue sitting for quite some time and it was in that time framework, and that time framework alone, that the plaintiffs were putting forward their claim that the entire of the arbitration and the payment of every penny to which the defendants are entitled, their, land having been taken from them, should on this flimsiest of factual basis, as matters now stand, be put off for that indefinite period of time. The attempts of the plaintiffs to try to mitigate the extremely unjust and inequitable consequences of that approach appear to have found favour with the learned High Court judge. They do not find any favour with me. I am satisfied that, not only should the interlocutory injunction never have been granted, but on the factual and legal basis put forward there was no justification for the issuing of the proceedings in the first place.

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I would allow the appeal and substitute for the order of the High Court judge an order dismissing the claim for an interlocutory injunction.