Hillwalkers have asked the Supreme Court for leave to appeal a decision from the Court of Appeal which found they had failed to prove a right of way existed over 500 metres in the Glencree Valley in Co Wicklow.
Hillwalkers Niall Lenoach of Monastery Grove, Enniskerry and Noel Barry of Monastery, Enniskerry, have asked the Supreme Court for permission to appeal the judgment on a number of grounds including that the Court of Appeal allegedly imposed rules for the proving of rights of way that were not in accordance with precedent.
The dispute between the two men and local landowner Joseph Walker has already been in the High Court and briefly in the Supreme Court before being referred to the Court of Appeal where the three-judge court ruled in May 2018 that Lenoach and Barry had not been proved there was a right of way. Costs are understood to be significant.
The hillwalkers argued that since 1760, there was a public road in the area known as the Old Coach Road.
Some 500 metres of the alleged road crosses land belonging to Mr Walker, a local landowner.
Mr Walker disputed the claims by Mr Lenoach and Mr Barry, arguing that no such road exists. He claimed he was subjected to aggressive confrontations after marches to his land were organised. He also claimed his property was damaged by trespassers.
While he did not blame the defendants for the damage, he believed their campaign had led to trespassers gaining access to his land, he said. He claimed he was besieged and intimidated because of the actions of the defendants in agitating for a public right of way.
In 2012 the High Court declared effectively that Mr Walker’s lands, and 48.5 acres of adjoining unregistered land at Annacrivey, Enniskerry, were not subject to any public rights of way.
Last year the Court of Appeal found Mr Lenoach and Mr Barry had not proven the existence of a public right of way across the land. The Appeal Court dismissed the appeal by Mr Lenoach and Mr Barry.
Giving the Court of Appeal judgment, Ms Justice Whelan, with whom Mr Justice Michael Peart and Mr Justice Paul Gilligan agreed, said, because the fundamental proofs were not provided to satisfy the evidential requirements for a claim the disputed way constituted a pathway, the High Court findings could not be set aside on appeal.
But papers seeking leave to appeal the Court of Appeal judgment were lodged in the Supreme Court last month. They show Mr Lenoach and Mr Barry, through their counsel Michael Forde SC, argued there was “extensive documentary evidence” of the right of way including a map commissioned in Lord Powerscourt in 1799. They also claim several of the principal reasons given by the Court of Appeal for rejecting their case were “not supported by precedent of Irish or other courts”.
Both Mr Lenoach and Mr Barry have said the costs could potentially ruin them. The landowner Mr Walker has previously said he has suffered very significant legal costs in the case, in addition to bearing his own costs in the Court of Appeal.
