The Public-Private Divide Again

A decision from the Irish High Court in the long-running saga of Dontex Ltd. v. Dublin Docklands Development Authority, [2012] IEHC 318 is a useful example both of the division between private law and public law and of judicial reluctance to bar claims on the basis that the parties have chosen the wrong juridical route.

At the centre of this dispute is the site of an old glass bottle factory in the Dublin Docklands. Together with the plaintiffs and others, the Authority formed a consortium to buy the site. Completed in 2006, when the Celtic Tiger was roaring loudly, the sale carried a price tag of several hundred million.

The plaintiffs are unhappy primarily because (they say) the Authority made representations it had no power to make guaranteeing public transport services and planning permission. Failure to fulfill the representations caused the value of the site to plummet. Without these representations, the plaintiffs allege, they would never have entered into the agreement in the first place.  But this argument about statutory powers was not included in the original statement of claim; apparently, its importance only became clear after affidavits were filed. Accordingly, the plaintiffs successfully sought to amend their statement of claim.

The objection subsequently raised by the Authority was that the plaintiffs did not make these allegations about the Authority straying outside its statutory remit at the outset of the litigation: the plaintiffs chose to pursue private law remedies. Now, the Authority suggested, they were raising public law arguments. Significantly, the time period for raising any such arguments had expired: public law remedies must be sought within 6 months of a final decision. So, the Authority argued, the plaintiffs should not be permitted to circumvent the time limit by raising questions of public law in a private law action well after the action had been commenced.

Charleton J. refused the Authority’s objection. First, he described the public-private divide in colourful terms:

If a statutory body set up to promote swimming were to buy four acres to be set out in hurling pitches, which was beyond the scope of its legislative powers, then the farmer, from whom those fields were bought, would have a private law remedy in the event that the sale was not completed. If, on the other hand, an officious bystander with knowledge of the transaction were to feel aggrieved about the promotion of our ancient game by a body supposedly devoted to swimming and sought to overturn the transaction on the basis that the authority could only spend money on water sports, then the only remedy would be to through the public law challenge of judicial review.

(As to hurling, here is a helpful video for the uninitiated.)

On the facts of this case, Charleton J. held that the Authority would suffer no prejudice from the amendment to the statement of claim:

The amendment allowed to the statement of claim raised the suggestion of a public law challenge. This Court is conscious of the confusion that can arise between remedies claimed in private and in public law. That confusion is shown to be genuine in this case. The delay here, in comparison to cases where a late challenge was disallowed such as in De Róiste v The Minister for Defence [2001] 1 IR 190, is small. As Denham J stated in that case, at 208, the court should look to the nature or order of actions which are the subject of the application; the conduct of the applicant; the conduct of the respondent; the effect of the order under review on the parties subsequent to when the order had been made; the impact of such an order on any third parties; and the importance of public remedies being disposed of swiftly. The analysis of Fennelly J at 216 condemns ancient proceedings as inappropriate to public law remedies. Accepting all of these principles, it is clear that there has been a seesaw of applications and that fundamental to the claim of the plaintiffs is that it would never have entered into this deeply unwise transaction in the property market with the defendant as a business partner had a fair analysis of the powers of the Dublin Docklands Development Authority been laid out clearly. These are important remedies. No prejudice has been suffered. Nothing is to be gained by a portion, which was added to this litigation when it was realised to be important within 14 months of its commencement, being now surgically extracted. [My emphasis]

The trend is to permit plaintiffs to make their case as they see fit. If a public law remedy is sought as a part, but not the whole, of a private law action, courts will generally allow the case to proceed. Only where a public law challenge is dressed up as a private law claim, or vice versa, or there is an attempt to abuse the process of the court, are judges likely to interfere.

This content has been updated on June 11, 2014 at 09:47.