The owners of Lissadell House have urged the Supreme Court to order Sligo County Council to pay all of the substantial legal costs, estimated at least €7 million, of the bitter legal battle over public rights of way across the historic estate in Co Sligo.
However, an application by the owners asking the Supreme Court to remit to the High Court for hearing a claim by them for damages over alleged slander of their title to Lissadell was withdrawn after exchanges yesterday, during which a Supreme Court judge indicated the reasonableness of the conduct of both sides may be a factor to consider when addressing costs issues.
“Common sense” had to apply, Mr Justice John MacMenamin remarked. Lawyers for both sides insisted they had made efforts to settle the dispute and each blamed the other over the failure to do so.
The five-judge court yesterday reserved its decision on costs and other issues arising from the court’s judgment upholding the owners’ appeal against the High Court finding of public rights of way across four routes at Lissadell.
Last November, the Supreme Court ruled a public right of way existed only along a coastal route to the beach at Lissadell. Following that judgment, the council raised issues concerning particular findings of the court and effectively sought a review of certain findings. The owners asked the court to clarify references to the location of a particular point in the estate and to remit for hearing by the High Court their claim the council slandered their title to Lissadell.
The Supreme Court heard submissions on those issues yesterday after which the Chief Justice, Ms Justice Susan Denham, said it was reserving its ruling on all issues, including costs.
Eoin McCullough SC, for Lissadell owners, barristers Edward Walsh and Constance Cassidy, said they were entitled to their costs against the council. John Rogers SC, for the council, said the “justice” of the case would be met by an order directing both sides to pay their own costs.
Mr Rogers argued the owners were determined to proceed with litigation despite an offer by the council to settle the case on the basis of acceptance of a public right of way to the beach at Lissadell.
Had the parties engaged in mediation or an alternative dispute resolution mechanism, the costs would have been “a mere fraction” in the context of the costs ultimately incurred in the litigation.
Mr McCullough said he was “shocked” by such arguments when the council had, both in the High and Supreme Courts, maintained its claim that all routes of way through the estate were public.
The owners initiated their case in January 2009 in response to the council passing a resolution in December 2008 aimed at protecting public rights of way at Lissadell, he said. Before that resolution, the council wrote to the owners warning that litigation was inevitable if they persisted in closing off routes at Lissadell.
Mr Rogers said the council resolution had no legal effect, which the owners were told, and that the council, as a public body, had a duty to protect public rights of way.
Mr McCullough said it was not correct to say there were no settlement discussions but it was correct, at a particular time, that his side refused to discuss further. It was “very dubious” to suggest a party might be penalised over whether or nor they engaged in settlement talks and a duty to protect public rights of way could not be used to expose others to legal costs, he added.
Among the issues to be considered by the Supreme Court is whether it should review its finding that there was no evidence one of the four disputed routes, Farm Avenue, existed before it appeared on an 1885 Ordnance Survey map.
Given that finding, the Supreme Court had ruled the High Court erred in finding that that route was dedicated for public use between 1857-1861.
