Clare County Council v Bernard McDonagh and Helen McDonagh [2021] IECA 140 

This is a judgment as to costs of the Court of Appeal judgment delivered on 12 November 2020. The Judge concluded that all orders of the High Court stand and ordered that the costs of both the High Court and the Court of Appeal be made against Bernard and Helen McDonagh.   

Facts  

This is a judgment as to the costs. The judgment was delivered on the 12 November 2020, the appellants were wholly unsuccessful in the Court of Appeal.  

The High Court judgment (Clare County Council v. McDonagh [2019] IEHC 662) held that the McDonaghs repeatedly engaged in breaches of the planning legislation, acts of trespass and unlawful conduct for the purposes of exerting pressure on the Council to secure housing demands of a bespoke nature, kind and scale for which it was found the appellants had established no lawful entitlement. The Judge found at no time were the McDonaghs left under the impression they were permitted to continue to reside on the land and that the statutory obligations of the Council did not extend to an obligation to provide accommodation or a site exclusively for the extended McDonagh family. On appeal to the Court of Appeal it was held that the McDonaghs failed to establish any basis on which it could be concluded that the High Court judge error in granting the interlocutory reliefs sought by the Council and refusing the claims advanced by the McDonaghs. The appeal was dismissed.  

The Council submitted that it is entitled to the costs of the appeal on the basis that it was entirely successful before the High Court and the Court of Appeal. They submitted that as the judgment found there is a strong likelihood that they would succeed at trial considering the clear breaches of the planning legislation and continuing acts of trespass of the respondents. They submit they should be entitled to costs as it was found they acted proportionately and reasonably. Finally, they submit they are entitled to the costs of the appeal on the basis that the McDonaghs have been in situ on the lands for over two years whilst the proceedings have been heard.  

The McDonaghs opposed the making of the orders that follow from the Court of Appeal’s judgment arguing that it will make them homeless but understand that their current legal representation is not in a position to pursue a pro bono appeal of the Court’s decision on the behalf. The McDonaghs submit that they are in receipt of social welfare payments and do not enjoy good health and an order for costs would be difficult to enforce. They submit they would consider non-Traveller specific accommodation if it were such that would enable them to live together as an extended family unit as is customary among Irish Travellers.   

Issue  

Whether Bernard McDonagh and Helen McDonagh liable for the costs of the Council’s High Court and Court of Appeal costs. 

Reasoning  

The Judge found that the appellants have identified no valid basis for refusing the County Council order for costs. The conduct of the McDonaghs in repeatedly breaching the planning legislation and committing acts of trespass, as outlined in the judgment is to be deprecated. This conduct seriously undermines the discharge of the housing and planning compliance functions of the respondent. The Court noting that this a compelling factor under s. 169(1) of the Legal Services Regulation 2015 Act that warrants an order for the County Council’s costs of both the High Court and this Court on appeal being made against the appellants. 

Conclusion 

The Judge ordered that the McDonaghs, their servants and agents, any party or parties acting in concert with them or either of them or connected with them and all other persons having notice or knowledge of the making of the order pending the trial of this action, be compelled to remove forthwith themselves together with all caravans, vehicles and associated property from Clare County Council’s lands at Cahercallamore, Ennis, Co. Clare, more particularly described in Folio CE50734F of the Register of Freeholders County of Clare with a stay on same until 31 May 2021 at 6pm.  

The Judge concluded that all orders of the High Court stand.  

 The Judge ordered that the costs of both the High Court and the Court of Appeal be made against the appellants.