The High Court yesterday refused to grant an order preventing the removal of a section of an ancient fosse - a walled ditch - at Carrickmines, on the line of Dublin's South Eastern Motorway.
Mr Gordon Lucas, Willbrook Lawn, Rathfarnham, Dublin, and Mr Dominic Dunne, Benburb Street, Dublin, had sought the interlocutory injunction against Dún Laoghaire-Rathdown Co Council pending a full hearing of legal proceedings. The council opposed the application.
Following a day-long hearing yesterday, Mr Justice Lavan refused to grant the injunction and granted costs to the council. He put a stay for 21 days on the order for costs in the event of an appeal.
It was claimed by the plaintiffs that the council wished to immediately dismantle a 10-20 metre section of a 200-metre fosse for the purposes of reassembling it at an unspecified location.
The council argued that the archaeological procedures which it had implemented at the site were proper and most successful. The final excavation report, which was the expected and necessary result of the archaeological excavation process, would preserve the detailed knowledge and heritage of the site.
Mr Justice Lavan said he had interrupted a case at hearing to take the injunction application. He was deeply conscious of the significance to the ratepayers of Ireland of delay in the construction of the motorway. He said he accepted evidence on behalf of the council that the most extensive excavation had taken place at the site, where Carrickmines Castle had been located until about 1642, when it was destroyed. He was satisfied there was no archaeological evidence that the practice adopted by an archaeological company on behalf of the council was wrong in archaeological terms.
He said he accepted that substantial weekly sums of more than €50,000 would be claimed by contractors for the council in relation to the periods when they were kept off the lands. The impact of granting an injunction would be to procure a breach of contract.
He was satisfied the plaintiffs would be unable to pay adequate damages for the substantial losses that would be involved. Work on the motorway would be suspended indefinitely. The judge also referred to the non-availability of dates for court hearings and added that if discovery were sought in the present case, there would be substantial delay of the works.
He asked why the application had not been brought to the attention of the judge who had heard other proceedings related to the site last week. In those proceedings, the council obtained an interlocutory injunction restraining anyone with notice of the order from trespassing on council lands at Carrickmines Castle.
Counsel for the plaintiffs said his clients had reserved their rights to have recourse to the courts.