Lissadell ruling reflects a reliance on English law and sense of property

Lissadell had been the home of the Gore-Booth family from the 16th century. It is on the coast overlooking the sea between Sligo town and Raghley Head, within the view of Ben Bulben and not far from Drumcliff. The original mansion house at Lissadell was built between 1750 and 1760.

During the occupancy of the estate by the fourth baronet of the Gore-Booth family, Sir Robert Gore-Booth, in the early part of the 19th century, the estate underwent a number of radical changes.

Sir Robert was chairman of the local grand jury, the predecessor of the local authority, and this facilitated him in making changes to the roads and avenues in and around the estate. He demolished the first Lissadell House and in the early 1830s built a new mansion 700 metres back from the sea, on higher ground, to give unimpeded views of the sea. He also constructed a new network of roads and avenues.

Sir Robert’s principal concern, as relayed to his architect, was to ensure that the house and surrounding gardens would remain completely undisturbed by traffic and by the visible presence of servants and tradesmen. A servants’ tunnel was built to avoid employees being in the view of the Gore-Booths and their guests from the expansive windows of the new mansion.

Sir Robert also engaged in the enlargement of the estate "to aggrandise the demesne when the new mansion was built" in the words of Bryan McMahon, the High Court judge who heard the case taken by the present owners against Sligo County Council. The addition of a further 555 acres brought the size of the estate to 32,000 acres.

Mass evictions
This aggrandisment necessitated the eviction of 120 families from the newly acquired lands. Sir Robert is credited with paying the passage to Canada of the families he had evicted from their homes. It is not recorded what the families thought of this arrangement or of the legal framework which facilitated their eviction. Nor is it recorded what the servants and tradesmen, whose visible presence was so distasteful to Sir Robert, thought of the lengths that were gone to to keep them from view.

In 1904 the sixth baronet, Sir Josslyn Gore Booth, sold 28,000 of the 32,000 acres to the Land Commission and on the remaining property developed a vibrant commercial enterprise employing up to 200 people at one stage. Among its enterprises was a munitions factory, which operated during the 1914-1918 war. In subsequent decades the estate went into decline and in 2003 Lissadell was offered for sale. A local action group tried to persuade the State to purchase the property but without success. In December 2003, two practising barristers, Eddie Walsh and Constance Cassidy (husband and wife) bought Lissadell House and its adjoining 410 acres for €4 million and subsequently spent €9.5 million in its restoration.

Shortly after they had purchased the property Eddie Walsh and Constance Cassidy became aware there were claims of rights of way through their grounds. They responded by locking gates and there began a legal battle between themselves and Sligo County Council, which had been spurred into action by a local action committee.

There was and is no dispute that there had been extensive public use of various avenues and paths across the lands, certainly from the early 1950s, but the issue in the High an Supreme Courts came to be whether there had been what is known legally as a "dedication", that is a decision taken by one of the owners of the property to accord to members of the public an entitlement to traverse along those avenues and paths and this was the issue – along with a plethora of other legal questions, that preoccupied the High Court during 57 days of hearing and the Supreme Court over seven days.

No reference to Constitution
The High Court judge, Bryan McMahon, delivered a judgment of 102 pages. Three judges of the Supreme Court, Niall Fennelly, Liam McKechnie and John MacMemanin, delivered a judgment of 108 pages! And throughout both these judgments reliance was made, almost entirely, on English jurisprudence – that is, decisions of English judges in cases to do with rights of way – and, curiously, no reference at all to the Constitution, which states in Article 43 that while there is a natural right to private property, this is qualified by the principles of social justice and the exigencies of the common good.

Previous decisions
It seems to me that the High Court and the Supreme Court, relying on the constitutional reference to "the exigencies of the common good", could have found that where there had been usage for a prolonged period – for example, 20 years of usage – there was a right of way (this is the position under Scottish law). This would have involved a departure from previous decisions of the Supreme Court, but so what?

I should acknowledge that Bryan McMahon, in his judgment, went to considerable lengths to find there had been a “dedication” and therefore rights of way – but the Supreme Court found those lengths exceeded the available evidence and therefore there were no rights of way, aside from one minor one.

But isn’t it curious that the philosophy which underpinned the two judgments should have the same origin as that which permitted the eviction of 120 families in the years before the Famine?