THE APPLICATION by RTÉ broadcaster Pat Kenny to have the High Court dismiss claims by his neighbour in their legal dispute over the ownership of land adjoining their homes has been rejected in the High Court.
Mr Kenny and his wife Kathy had sought to have the case by Gerard Charlton against them dismissed on grounds of failure by Mr Charlton, a retired solicitor, to discover documents.
However, Mr Justice Frank Clarke ruled yesterday that while the failure to discover the documents was wrong, it did not justify the extreme step of dismissing the case, which he directed would now proceed on Tuesday.
He ruled Mr Charlton had acted wrongly in withholding aerial photographs of the disputed lands at Gorse Hill in Dalkey, Dublin.
Mr Charlton and his wife Maeve claim they own the land - said to be worth about €1.5 million - but Mr Kenny and his wife Kathy say they own it by virtue of adverse possession or "squatters rights."
The case was due to begin in the High Court earlier this week but Mr Kenny's lawyers brought a preliminary application to have it struck out on grounds that the Charltons had not fulfilled their obligations to provide documents, including aerial photos of the land, in accordance with the pre-trial discovery process.
The Kennys claimed the photos were significant because they showed the nature of work on the land as well as access points.
Mr Charlton's lawyers claimed the preliminary application was an attempt to delay the hearing which, Eoghan Fitzsimons SC said, was a source of enormous stress to the elderly couple.
Mr Justice Clarke said he did not doubt the case was extremely stressful for both parties. The case had attracted a considerable amount of publicity mainly because of the parties involved, he noted.
This was the type of case that occurred up and down the country every day and often only merited even a couple of lines in a provincial newspaper, the judge added.
He stressed he was not dealing with the case's merits but merely whether there had been proper compliance by the Charltons in relation to providing documents during the discovery process.
While he had no doubt the Charltons had met their obligations in the "formal" sense, it had been argued by lawyers for the Kennys there was a demonstrable failure to meet them in full, requiring either that the case be struck out or an order be made requiring proper discovery.
The judge ruled the failure to make discovery of the photos was wrong. The reason for getting them in the first place was so they might add to the case in relation to issues of access and concerning what work had been carried out, he said.
Another issue considered by the judge was whether information about certain other documents, including memos about meetings between Mr Charlton and his lawyer, should have been included in the list of discoverable documents over which privilege could then be claimed or challenged.
Mr Justice Clarke found that the existence of certain documents, although not their contents, should be made known to a party so a privilege issue could be raised. He said it was "regrettable" to note the question of discovery was complicated by the fact that Mr Charlton was himself a solicitor. It was possible Mr Charlton might have had his own view about whether documents were privileged but unfortunately he did not leave the matter in the hands of his lawyers.
The judge said it did not seem there was a deliberate attempt to avoid making the documents available. However, Mr Charlton had fallen into "not insignificant error" by not taking his lawyer's advice.
He ruled it would be "wholly inappropriate" to strike out the proceedings as this was a course which should be taken in only the most extreme cases. The parties should not be deprived of their day in court. He was satisfied the concerns of the Kennys could be remedied by the filing by this evening of a new affidavit of discovery by Mr Charlton's lawyers.