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2026 IEHC 297

THE HIGH COURT [2026] IEHC 297 [Record No. 2019/3669 P] BETWEEN FINBAR TOLAN PLAINTIFF AND MAYO COUNTY COUNCIL DEFENDANT (No. 2) JUDGMENT of Mr. Justice Micheál O’Higgins delivered on the 22nd day of April 2026 Introduction

  1. This is my judgment on the defendant’s application seeking an order pursuant to O. 25, r. 1 RSC directing the trial of a preliminary issue, namely the question whether the plaintiff’s claim is statute barred by virtue of the provisions of the Statute of Limitations Acts 1957 and 1991 (as amended). This judgment should be read in conjunction with my separate judgment on the plaintiff’s application to amend his pleadings.
  2. The defendant’s motion is grounded on the affidavit of Catherine McConnell, Director of Services of Mayo County Council sworn on 12th March
  3. Ms. McConnell outlines the background to the plaintiff’s claim as follows. In or about March 2006, the plaintiff applied for 1 planning permission in his own name to construct a dwelling at an address in Claremorris in County Mayo. This application was refused on the basis that a site inspection revealed that the area was unsuitable for the safe disposal of domestic effluent due to the high level of the water table on site and the poor percolating properties of the soil. The application was therefore considered prejudicial to public health and contrary to the proper planning and development of the area.
  4. The plaintiff made a further application for planning permission in his own name in May
  5. Permission for the dwelling was granted in August 2006, subject to conditions, including a number concerning the treatment of wastewater on site. The plaintiff was given notification of the decision by notice dated 11th August
  6. The final grant of permission issued on 13th September
  8. By letter dated 2nd October 2006, the plaintiff, through his then solicitor, corresponded to express his dissatisfaction with a number of the conditions imposed by the defendant in respect of the grant of permission and demanded an “amended grant of planning permission”. The plaintiff did not appeal the matter to An Bord Pleanála.
  9. Following a request for a meeting by the plaintiff’s solicitors, a meeting was held on 17th October 2006 at which conditions on the planning permission were discussed.
  10. By letter dated 17th January 2007, the plaintiff again corresponded through his solicitor and made a number of assertions. These included a claim that he had engaged a Mr. Egan, an employee of Mayo County Council, to apply for the planning permission in question. The letter criticised the role of other parties whom it is not necessary to name at this stage. The letter also criticised various aspects of the planning process and the handling of the entire matter by both Mr. Egan and Mayo County Council.
  11. At para. 6, Ms. McConnell states that, with respect to the plaintiff’s complaint as set out in the solicitor’s letter, the normal course of action is to investigate same and make a 2 determination, and, if a complaint is upheld, to take appropriate action. However, she avers that Mr. Egan went on sick leave and subsequently retired on medical grounds, and as a result no determination or appropriate action (if it was appropriate) was possible.
  12. Ms. McConnell states at para. 7 that nothing further was heard in relation to the matter until 2019, when the plaintiff issued the within proceedings. Subsequently, the plaintiff made a data access request which was responded to in full.
  13. At para. 8, she states that the plaintiff issued the within proceedings on 9th May 2019 and sought damages, inter alia, for breach of contract, negligence, loss of opportunity caused by breach of contract, “aggravation”, inconvenience, health deterioration, breach of duty and misrepresentation.
  14. The plaintiff delivered a statement of claim on 19th May 2023 in which he considerably amplified his claim. A full defence has been delivered, including pleas that the claim is statute barred, misconceived, bad in law, not justiciable, and that no duties of any sort were owed by the defendant to the plaintiff.
  15. Ms. McConnell says at para. 10 that, to the extent that the plaintiff may have a claim against the defendant, which is fully denied, all such claims are statute barred or are otherwise unstatable and bound to fail. Insofar as the plaintiff retained Mr. Egan to assist him, in any capacity, a fact to which the defendant is a stranger, the plaintiff was aware of Mr. Egan’s employment with the defendant before 17th January
  16. In such circumstances, it was incumbent upon him to issue proceedings much earlier than 9th May 2019, more than twelve years after his solicitor wrote to the defendant in that respect, and, at all events, not later than January
  18. At para. 11, Ms. McConnell states that the essence of the plaintiff’s action is that he retained, in exchange for reward, the services of Mr. Egan to advise and act on his behalf in the making of an application to the defendant for planning permission for a dwelling house but 3 was allegedly unaware of Mr. Egan’s employment with the defendant at that time. At para. 5 of the statement of claim, it is alleged that it “transpired subsequently that James Egan while obtaining financial reward from the Plaintiff for his services was an employee of the Defendants [sic] when engaged by the Plaintiff, but omitted to disclose this to the Plaintiff at that time”. The plaintiff maintains, therefore, that Mr. Egan was acting in the course of his employment with the defendant, even though he was also acting for the plaintiff in his planning application.
  19. At para. 12, Ms. McConnell states that, at para. 11(i) of the statement of claim, the plaintiff claims that he “first learned that James Egan was a planner and employee of the Defendant after the Plaintiff was first refused planning permission”. His first application for permission was refused in April
  20. He applied for permission again in May 2006 and was granted same, subject to conditions with which he expressed dissatisfaction. At para. 12 of the statement of claim, the plaintiff asserts that Mr. Egan “held himself out as an employee of the Defendant having expertise and influence in planning who would circumvent the public health hazard of the Plaintiff[’]s site”. Ms. McConnell avers that these pleas must be understood to mean that the plaintiff was aware of Mr. Egan’s employment with the defendant when he made a second planning application, notwithstanding his subsequent complaints as to that fact.
  21. At para. 13, Ms. McConnell avers that there is nothing in the plaintiff’s statement of claim to suggest that he did not have available to him all relevant facts necessary to formulate a claim or to put him on reasonable enquiry of the existence of a claim after January
  22. Rather, it appears from his pleadings that he was aware of the position but proceeded with the second application anyway. Ms. McConnell confirms that Mr. Egan was an employee of the defendant at the time the plaintiff made his application for planning permission and says that he retired from his employment in or about
  23. She says that the defendant is a stranger to the arrangement between the plaintiff and Mr. Egan. 4
  24. Ms. McConnell avers that, if the plaintiff did not like the planning conditions imposed, or felt that there was an administrative infirmity in the manner in which the permission was considered and granted, he could have either appealed the decision or brought judicial review proceedings. He did neither.
  25. At para. 14, Ms. McConnell avers that the plaintiff was granted planning permission for his dwelling which he ostensibly constructed on foot thereof. In light of the fact that the plaintiff successfully obtained planning permission and constructed his dwelling, it is not apparent to the defendant what damage is being claimed as could give rise to a cause of action. The plaintiff claims, however, that he was not advised by Mr. Egan that planning permission had previously been granted by the defendant for the erection of a windmill close to his property, which now allegedly interferes with the peaceful enjoyment of his home and which he says has made the use thereof impossible, save for storage purposes, and the plaintiff asserts a claim in nuisance in that regard. Ms. McConnell avers that the defendant did not construct the windmill of which the plaintiff makes complaint and is not responsible for its operation, and, as such, the defendant can have no liability for any alleged nuisance arising therefrom.
  26. At para. 15, Ms. McConnell avers that, whatever the merits of the plaintiff’s claim, he has delayed in issuing his proceedings to the point where his claims are substantially and conclusively statute barred. It is apparent from the background and the pleadings that, had the plaintiff a legitimate claim, which is denied, he could have issued his papers within time. As matters stand, he did not do so and is now at a remove of over twelve years since his purported cause of action was complete.
  27. Ms. McConnell avers at para. 16 that there was no damage arising out of the facts relied upon such as could give rise to a cause of action in any case. The plaintiff applied for and was granted planning permission, subject to conditions, and he built his house. At para. 12 of his statement of claim, the plaintiff says that Mr. Egan held himself out as “an employee of the 5 Defendant having expertise and influence in planning who would circumvent the public health hazard of the Plaintiff’s site”. Ms. McConnell avers that this is a matter between the two men. At all events, the defendant could never, and would never, countenance “circumventing the public health hazard” of any site, and patently did not do so in respect of either application for planning made by the plaintiff, which, it says, was presumably why he was so dissatisfied with the conditions imposed in the permission ultimately granted.
  28. Ms. McConnell states at para. 17 that, insofar as the plaintiff claims in nuisance for the windmill affecting his property, this is not a matter for which the defendant can have a liability, it not being responsible for the construction or operation of the said windmill.
  29. Ms. McConnell concludes her affidavit by contending that the determination of the issues sought to be determined by way of preliminary hearing will lead to a substantial saving of court resources and costs, by either disposing entirely, or at the very least substantially, of the plaintiff’s claim.
  30. The plaintiff filed a replying affidavit on 23rd April
  31. Ms. McConnell filed a further affidavit in reply on 23rd October 2024, and the plaintiff delivered a second replying affidavit on 4th December
  33. I have read these additional affidavits, but do not propose to set out their contents or treat of them extensively because it seems to me that they go to the merits of the parties’ respective arguments on the statute of limitations issue. Since I am not being invited to determine the statute of limitations issue in this application, but am only considering the preliminary question of whether the hearing of a preliminary issue should be directed, I propose to say nothing about the strengths or weaknesses of the parties’ respective positions. I will instead confine my analysis to the question whether a preliminary issue should be directed. Summary of the plaintiff’s arguments 6
  34. The plaintiff objects to the defendant’s motion. He contends that the defendant’s submission is misconceived in asserting that the proceedings should have issued “not later than January 2013”. The plaintiff contends that the letters from his former solicitor to the Planning Department of Mayo County Council, and to Mr. Des Mahon, County Manager, do not complain of a wrongdoing that affected his property, or the use and enjoyment of his property. He asserts that his loss had not crystallised at this stage because the septic tank was not installed and the wind turbines had not been erected, and that his complaint did not then amount to an actionable loss, let alone a provable loss.
  35. The plaintiff relies upon the judgment of Hogan J. in Smith v. Cunningham & Ors. [2023] IESC 13 where Hogan J. observes that compliance issues in respect of planning permissions are by no means uncommon, and that it will be unrealistic to expect plaintiffs to sue immediately in such cases. Hogan J. also considered the exception to the statute of limitations where a plaintiff conceals fraud.
  36. The plaintiff argues that the actions of the defendant were concealed in the application for planning permission, the granting and refusal of the first application for planning permission, the retaining of the engineer and the successful renewed planning application. He says that it must have been apparent to the defendant, its servants or agents collectively and individually that the plaintiff’s site was inappropriate for planning and that the building of a house and septic tank would materially affect public health, the property and its value.
  37. The plaintiff expressly relies on s. 71

(1)of the Statute of Limitations Act 1957 which provides that, where in the case of an action for which a period of limitation is fixed by the Act and the right of action is concealed by the fraud of any person, the period of limitation shall not begin to run until the plaintiff has discovered the fraud or could with reasonable diligence have discovered it. 7
  1. The plaintiff contends that “forgery is a fraud” and that he will provide evidence at trial of this fact and lead evidence from a document examiner if necessary. Further, the plaintiff submits that fraud has a wide meaning and can take many forms, and that dishonesty is a form of fraud.
  2. The plaintiff emphasises what he says is the disparity of power and finances existing between the parties. He is a farmer with only a secondary school education, and the defendant is a statutory authority with unlimited resources, manpower and knowledge. He says that, due to the actions of the defendant, his house, its value and his peaceful enjoyment of the property have been destroyed, and that he should not be left without a remedy.
  3. Finally, the plaintiff submits that the defendant’s defence is a bare denial. While he acknowledges that Ms. McConnell was not an officer in the employment of Mayo County Council at the relevant time, he says that she should not have sworn the defendant’s affidavit as she has limited knowledge of the underlying matter and of the investigation carried out or not carried out by the County Council. Summary of the defendant’s arguments
  4. The defendant seeks the trial of a preliminary issue of law pursuant to O. 25, r. 1 RSC to determine whether the plaintiff was too late in bringing these proceedings. The defendant says that the plaintiff’s cause of action, such as it is, accrued more than six years prior to the initiation of the proceedings. It argues that the entire matter could be finalised in the preliminary hearing in circumstances where the case concerns events which occurred over twelve years before the proceedings were taken by the plaintiff. Significant court time and resources would be saved by the court directing the hearing of a preliminary issue on the statute. 8
  5. The defendant submits that its case meets the criteria identified by Mr. Justice McKechnie in the Supreme Court in Campion v. South Tipperary County Council [2015] 1 IR 716 at para.
  7. Order 25 provides for the separate trial of a net point of law, dissociated from issues of fact. The defendant acknowledges that the point of law must arise on the basis of the facts being as the opposing party in his pleadings alleges them to be (Kilty v. Hayden [1969] IR 261).
  8. The plaintiff’s causes of action in these proceedings all arise out of an alleged contractual obligation owed to the plaintiff associated with the planning application granted by the defendant in or about
  9. The cause of action includes, but is not limited to, the tort of negligence. The primary relief sought by the plaintiff is damages for pure economic loss. In these circumstances, says the defendant, it would be in the interests of justice to direct a hearing on the preliminary issue. Discussion of issues
  10. The case law identified by the parties indicates that the trial of a preliminary issue will only be ordered in limited circumstances where a discrete issue or issues arise in proceedings that can be conveniently tried by reference to agreed facts and where the determination of such issues will dispose of, or substantially dispose of, the entire action. Several cases emphasise that the classic example for ordering the trial of a preliminary issue is where a defendant pleads that the proceedings are statute barred. This is such a case.
  11. In the analysis that follows, it is appropriate that I should exercise care so as not to stray into substantive waters or say anything about the merits of the parties’ respective arguments on whether the claim is statute barred.
  12. The only question that I must address is a procedural one, namely, whether it would be in the interests of justice to direct a hearing of a preliminary issue on the question whether the 9 claim is statute barred. For the reasons set out below, I am satisfied that the defendant has advanced sufficient reasons to warrant granting the order sought. In my view, considerable court time and costs will be saved by the court directing the hearing of a preliminary issue on the statute.
  13. Such a hearing would be determined against the backdrop of the facts as disclosed in the affidavits that have already been filed in this motion. Insofar as there may be conflicts on the facts as deposed in those affidavits, the preliminary issue will be determined on the basis of the facts as contended for by the plaintiff. In my view, that requirement accords with the applicable case law.
  14. Moreover, I will direct that the hearing of the preliminary issue on the statute will proceed on the basis of the plaintiff’s amended pleadings in accordance with the order I have made on the plaintiff’s application to amend his pleadings. In other words, on the basis of the plaintiff’s amended plenary summons and statement of claim, minus references to any plea of fraud.
  15. In seeking to resist the trial of a preliminary issue, the plaintiff points to the fact that his existing pleadings include allegations of dishonesty by the defendant, misrepresentation, concealment, wrongful cover-up, bias and illegality. At para. 28 of his written submissions, the plaintiff contends that forgery is a fraud and that he will provide evidence at trial of this fact including evidence from a document examiner, if necessary. The plaintiff contends that fraud has a wide meaning and can take many forms, and he submits that dishonesty is a form of fraud.
  16. In my view, these submissions are misconceived and do not constitute a basis for refusing the defendant’s motion to direct a hearing on the preliminary issue. I say this for a number of reasons.
  17. First, alleging dishonesty, male fides, or impropriety of any sort is not the same thing as pleading fraud against a defendant. Supreme Court case law makes it clear that allegations 10 of fraud must be pleaded with particularity and exactitude. In Keaney v. Sullivan [2015] IESC 75, Dunne J. agreed with the principles set out by Finlay Geoghegan J. in the High Court in that case, where Finlay Geoghegan J. referred with approval to a passage from Bullen and Leake, 12th Ed.,
(1975)at pp. 452 to 453, wherein the authors emphasised that a statement of claim must contain precise and full allegations of facts and circumstances leading to the reasonable inference that fraud was the cause of the plaintiff’s loss. General allegations of fraud will not suffice. 42. This view is reflected in the terms of O. 19, r. 5
(2)RSC which provides: “
(2)In all cases alleging misrepresentation, fraud, breach of trust, wilful default or undue influence and in all other cases in which particulars may be necessary, particulars (with dates and items if necessary) shall be set out in the pleadings.”
  1. Second, while I note that the plaintiff’s existing pleadings allege matters such as misrepresentation, negligent misstatement, wrongful cover-up, bias and illegality, and also dishonesty on the part of Council officials, these allegations - whilst obviously serious in their own right - are separate and distinct from allegations of fraud. Allegations of fraud, as I have said, must be pleaded with particularity and exactitude. Since I have refused the plaintiff’s application to amend his pleadings insofar as he sought to include allegations of fraud, it must follow that this ground for objecting to the trial of the preliminary issue must necessarily fail.
  2. Third, there is ample precedent for directing the trial of a preliminary issue on the question of whether a claim is statute barred. In Croke v. Waterford Crystal Ltd [2006] IEHC 266, Murphy J. directed the trial of such an issue, stating at paras. 4.7 and 4.8 that: “While there are, of course, disputes in relation to many issues, there are basic facts which are agreed as between the parties… The court accepts that one of the objects of case management includes the narrowing of issues. It would seem to follow that the trial of the discrete separate issues pursuant to Order 25 is appropriate.” 11
  3. In Maguire v. O’Callaghan [2020] IECA 273, Power J., for the Court of Appeal, dismissed an appeal against the decision of Noonan J. granting the defendant’s application for a trial of a preliminary issue as to whether s. 9
(2)(b) of the Civil Liability Act 1961 operated so as to statute bar the plaintiff’s medical negligence proceedings. Power J. restated the general principle that it is important that the point to be tried as a preliminary issue should have the possibility of either resolving a claim altogether or at least resulting in a clear saving in terms of costs and time due to a reduction of the issues to be tried. She stated that this was confirmed in L.M. v. Commissioner of An Garda Síochána [2015] 2 IR
  2. For all these reasons, I am satisfied that it would be in the interests of justice and the saving of court time and resources that the court should accede to the defendant’s application. Conclusion
  3. For the reasons stated, the defendant is entitled to an order pursuant to O. 25, r. 1 RSC directing the trial of a preliminary issue on the question whether the plaintiff’s claim is statute barred by virtue of the provisions of the Statute of Limitations Acts 1957 and 1991, as amended, as against the defendant.
  4. I direct that the trial of the primary issue should proceed on the basis of the plaintiff’s amended plenary summons and statement of claim, in accordance with my order in the related motion for liberty to amend the plaintiff’s pleadings. In other words, on the basis of the amended pleadings minus any reference to the pleas of fraud.
  5. I further direct that the trial of the preliminary issue should be determined by reference to the facts as disclosed in the following affidavits: • The affidavit of Catherine McConnell, filed on 12th March 2024; • The replying affidavit of Finbar Tolan, filed on 23rd April 2024; • The replying affidavit of Catherine McConnell, filed on 23rd October 2024; 12 •
  6. The replying affidavit of Finbar Tolan, filed on 4th December
  7. Insofar as the affidavits disclose any conflicts of fact, the trial of the preliminary issue will proceed on the basis of the facts as contended for by the plaintiff. This accords with the case law that I have outlined above. Signed: Micheál O’Higgins 13

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