Judge refuses €12.8m payment order over M50 land dispute

A company of businessman Jim Kennedy has been refused an order that it be paid a €12.8 million arbitrator's award made as compensation for land needed for the M50 motorway.

Jackson Way Properties Ltd (JWPL) had also argued that, if the full amount of the 2003 award was not to be paid at this stage, it should receive €7 million of the award immediately. This would be pending determination of a separate legal action related to the title of the land.

Mr Justice Donald Binchy said the issues surrounding ownership of part of the land involved were too complicated to justify making a payment order at this stage.

JWPL had also failed to meet the test to justify an injunction ordering payment or to show that damages would not be an adequate remedy, the judge said.

In November 2003, an arbitrator ordered Dún Laoghaire-Rathdown County Council to pay €12.8 million to JWPL for an 18-acre “take” of land in Carrickmines, south Dublin, required for the motorway subsequently built.

Freezing order

There followed years of legal cases including a freezing order obtained by the

Criminal Assets Bureau

(Cab) alleging corrupt enrichment of JWPL as a result of rezoning of the land by Dublin county councillors in the 1990s.

Cab later withdrew its case against the company following a failed prosecution for corruption against Mr Kennedy and a number of councillors. The bureau said its case could not proceed due to unavailability of witnesses.

JWPL is now suing Cab for damages for misfeasance in public office. Cab denies the claims.

JWPL separately sued Dún Laoghaire-Rathdown council for judgment for the €12.8 million arbitrator’s award.

It also sought orders that an alleged legal issue over title to the land does not affect its entitlement to payment of the award. The issue relates to a “restrictive covenant” imposed on the land in 1962 as part of a deal between the previous owners and their neighbours. Separate proceedings by an adjoining landowner in relation to the restrictive covenant are due to be heard in December.

Notwithstanding those pending proceedings, JWPL argued  the court should order the payout of €7 million of the €12.8 million. The company denied the restrictive covenant carried over when ownership changed hands in subsequent years.

Dún Laoghaire-Rathdown council opposed the claim and said no one can get paid until the separate proceedings by the adjoining landowners are dealt with.

In his ruling, Mr Justice Binchy said it was difficult to lay fault for any delay in this matter with the council. JWPL had failed to take any steps to deal with the restrictive covenant issue and only issued proceedings against the other landowners, who claim there is such a covenant, after bringing the case seeking payment of the award, he said.