Striking out of proceedings where the parties settle – a question of discretion or jurisdiction for the courts?

In Dempsey v An Bord Pleanala1, the question arose as to whether the High Court (the Court) retained a discretion to rule on the validity of a planning permission which had been challenged, notwithstanding the parties' agreement to settle the case. In April 2020, Mr Justice Simons decided he should seek guidance from the Court of Justice of the European Union (CJEU), by way of an Article 267 Reference, on the obligations of a court in a member state in this regard. We covered this in an earlier update. This was in circumstances where the development in relation to which the planning permission had been granted had needed an Environmental Impact Assessment (EIA), which is an EU law requirement.

Before the matter was sent to the CJEU, the Attorney General (AG) successfully applied to be joined to the proceedings. In its submissions to the Court, Counsel for the AG argued that the matter was not one of Court discretion, but rather whether the Court retained jurisdiction to deliberate on proceedings, where all of the parties had already agreed to settle the proceedings. The AG successfully argued that where all of the parties agreed that proceedings should be struck out, then the Court's jurisdiction ceased because there was no longer any issue remaining for the Court to adjudicate upon. Therefore no reference to the CJEU was required. 

The Court fairly acknowledged that its original decision (to make a reference to the CJEU) was incorrect, as his judgment mistakenly approached the matter as one of discretion, rather than one of jurisdiction. Mr Justice Simons ordered that the proceedings be struck out in their entirety, with no order as to costs and no reference to be made to the CJEU. The planning permission therefore remains valid and capable of being relied upon. It is worth noting that a reference to the CJEU typically takes 18-24 months to process, which in and of itself would have been of significant prejudice to the developer.

Background

The case concerned judicial review proceedings, in which four objectors challenged a strategic housing decision of An Bord Pleanála (the Board) to grant permission for 366 new homes to developer Ardstone Homes, in Kildare. Various grounds were advanced including that the EIA was inadequate. The objectors were especially concerned with housing density and overdevelopment of the site. Three quarters of the way through the hearing of the case, after arguments had been made on behalf of the objectors and the Board but before the developer had made submissions, all of the parties reached agreement and applied to strike out proceedings. Mr Justice Simons expressed concern that parties who settle public law proceedings deprive the national court of the obligation to provide a remedy in certain cases involving European law rights (in this case, arising from the EIA Directive). He considered that a reference to the CJEU was required on this question. It was in this context that the AG sought to be heard on the question of whether the High Court had jurisdiction to proceed to determine proceedings, notwithstanding the fact that all of the parties consented to an order striking out the proceedings.

Significance

The judgment is significant for a number of reasons.

1. It confirms the limited function of the Court as a law-maker. Courts may only decide cases which are brought before them by parties. A court may only decide those legal issues which are both necessary and essential to resolve the legal dispute between the parties, and may not do other things in the course of a judgment just because they may be of benefit either in the development of the law or of assistance in the resolution of future disputes. The Court's role is confined to adjudicating on "live" disputes between parties. Where disputes are settled with the consent of all parties and agreement reached to strike out the proceedings, the Court has no further role to play. 
    
2. If only some of the parties agree that the proceedings should be struck out, or where there is disagreement as to the precise terms for the strike-out, this would change the question from one of jurisdiction to discretion and different considerations would apply. In those circumstances, there would remain a “live” controversy before the Court, and the Court would have discretion as to what form of order to make. The Court would be entitled to impose terms in respect of costs, and, in extreme cases, might refuse to allow an applicant to withdraw proceedings where a respondent objects.
    
3. The case is important from a general procedural perspective, particularly in respect of the AG's role in relation to references to the CJEU and its position as defender of the public interest. While the AG is not entitled to intervene in proceedings as of right, the Court referenced its discretion to allow a party to be joined if it is necessary in the interests of justice, and where there is no specific rule of law excluding the addition of parties at that stage of the proceedings. In this case, the Court confirmed that as guardian of the public interest, the AG was a proper party to be heard in an important issue of constitutional law concerning the nature and extent of judicial power.
    
4. The Court noted that the AG does not need to be consulted or involved in all matters involving a reference to the CJEU. Mr Justice Simons noted that the mere fact that a court is considering making a reference to the CJEU does not necessitate putting the Attorney General on notice. This is because “the decision on whether to make a reference is, ultimately, a matter for the Court".

For more information please contact Alison Fanagan, Consultant or Mark Thuillier, Solicitor or any member of the Environmental & Planning team.

Date published: 21 October 2020