High Court of Ireland Decisions

1. Both these proceedings were taken together. There were other proceedings in the Circuit Court record no. 35/95E between Michael J Barrett Plaintiff and Thomas Dowling and Jennifer Dowling Defendants.

2. Thomas and Jennifer Dowling own a premises known as the Brew Master which is a licensed public house at number 93 Main Street Bray which was carved out of Folio number 2460F of the Register County Wicklow. That Folio is now registered in the ownership of the Plaintiff. It includes the alleyway known as the Village Gate Arcade. This arcade runs from the Main Street to a large car-park in or around the Roman Catholic Parish Church. The Plaintiff is the owner of this passage and owns at least two of the shops facing onto this arcade. At various times in the history of the arcade there has been a gate across the Main Street entrance. Each of the shop keepers has a key, as have Mr and Mrs Dowling. On the evidence the first shop keeper in the morning opens the arcade at Main Street, and the last shopkeeper leaving the premises around 6 p.m. in the evening closes and locks the gate.

3. At the car-park end of the alleyway there is a gateway which enters into what was obviously, previously some sort of outbuildings or stabling. There is a restaurant on one side and the kitchen of the restaurant on the other side. Presumably the passage from one to the other is on the first floor. As one approaches that end there is a gate on the outside then one passes in with the restaurant on one side and the kitchen on the other side and meets another gate which subsequently leads down the arcade and shops. The arcade itself is not straight so it is impossible to see the other exit from either ends of the arcade. At the restaurant end there is gate that’s set off from the car-park and then after one has passed under the archway, and passed the restaurant and kitchen, there is another gate. These gates are primarily for security to protect various arcade businesses and also to prevent the misuse of this alleyway as a toilet.

4. By an agreement in writing and dated the 23rd of August 1990 the predecessor in title to Michael J Barrett and Clare Mackin (the personal representative of Edward Mackim deceased) entered into an agreement whereby consent was granted to a company entitled Vartry Taverns Limited to assign the residue of its lease to the Defendants Thomas and Jennifer Dowling for the residue of the lease then remaining. The original lease had been granted on the 5th October 1961 and made between the Rt. Hon. Sydney Charles, Earl of Pembroke and Montgomery of the one part and Kathleen Mackin of the other for a term of 99 years. The original lease dated the 5th October 1961 reserved that the lessor and the owner or occupier of No. 92 Main Street, Bray the tenant, employees and licensees the right to pass and repass at all times on foot or with vehicles on, over and along the laneway set out on a map annexed before the said lease. In a further lease dated the 15th July 1977 made between one Edward Mackin and one Ronald Tucker the lessor demise to the lessee all that and those the premises known as No. 93 Main Street, Bray, Co. Wicklow with the provision permitting the lessee together with the use in common with the other tenants of the lessor in adjoining premises of the laneway at the southern end of the premises. The laneway in question has been referred to earlier as the “Arcade”.

5. By a consent dated the 18th day of October 1989 one Clare Mackin consented to an assignment of the premises No. 93, Main Street, Bray in the County of Wicklow then known as MacFadden’s Public House to Vartry Taverns Ltd. subject to the following conditions:-

6. The Defendants Thomas Dowling and Jennifer Dowling took the assignment of the said premises No. 93 Main Street, Bray on the 23rd August 1990 However Mr. and Mrs. Dowling specifically since April 1999 had adopted the practise of storing and off sacking kegs of beer in the laneway against a wall and refused to remove them. Thus Circuit Court proceedings were commenced and subsequently settled.

7. There are at least two exits from the Brew Master licensed premises at No. 93 Main Street, Bray to and through this alleyway. The second exit from Main Street was for the purpose of storing beer barrels. Michael Barrett applied ex parte for an interim injunction to prohibit the placing of barrels on the arcade. In the correspondence exhibited in that application the following paragraph appears in a letter dated the 14th June 1999 from Mr. Barrett’s solicitors to Mr. and Mrs. Dowling’s solicitors:-

8. The reply from the Dowling’s solicitors dated the 16th of June 1999, inter alia, “The position is that our clients have a right of way up the laneway for the purpose of their licensed premises and of course they are entitled to get delivery of barrels and also of the empty barrels taken away and as far as we are aware our client never intentionally blocked the right of way and of course they have no right to block the right of way .

9. These proceedings were settled by documents apparently dated the 26/10/99. That agreement provides that the Dowling’s will not interfere with Mr. Barrett’s legal rights in so far as they relate to the arcade save for their right of way as mentioned in a consent dated the 18th October 1989 BETWEEN Clare Mackin and Vartry Taverns Ltd. (the predecessors in title to Mr. and Mrs. Dowling). That acknowledges Vartry Taverns Ltd. have no right title estate or interest in the laneway at the southern end of the premises known as 93 Main Street, Bray except for pedestrian access to and from the entrances (note the use of the plural “entrances”) to the rear of the said premises.” The Court inspected the premises of Mr. and Mrs. Dowling and also walked the full length of the arcade accompanied by a legal representative for both parties. There is the existing gateway where barrels are taken in and out which hopefully has been resolved by the afore mentioned litigation which was settled in the Circuit Court. However inside the premises there is the main entrance on to the Main Street. There was also another exit and entrance in the next premises on Main Street but that has now been hived off from the main pub and is a totally separate premises and has been de-licensed. There is however an entrance onto the laneway or arcade. It has two modern steel doors against the wall as one looks from the arcade. However, inside there are old fashioned swing door with an illuminated sign over it which says “exit”. Having heard all the evidence and inspected the premises this Court is satisfied that there was and is an exit from the Brew Master public house onto this arcade for the use of customers and staff. There may have been occasions when the business was not serious. Indeed the Brew Master does not seem to have been functioning as a pub at all at the moment. Mr. and Mrs. Dowling have bought another premises in another town with bridging finance and they are trying to sell the Brew Master. It is clear from the evidence, indeed from the previously recited letter from Mr. Barrett’s solicitor that Mr. Barrett believed that there was no such right. It is extremely difficult to abolish a right of way. This Court is satisfied that while the right of way might have been dormant for various periods but that it did exist and does exist.

10. However, further proceedings were instituted in the Circuit Court by Equity Civil Bill, Record No. 18/2000 E between Thomas Dowling and Jennifer Dowling plaintiffs and Michael Barrett, defendant. That Civil Bill alleges that on the 4th and 5th March 2000 the defendant (Mr. Barrett) by himself or through his servants or agents blocked the use of easements by way of locking over two gates more particularly described and delineated on the map annexed to the Civil Bill. These were at the Main Street end of the arcade. It has pleaded that it is a requirement of the fire officer in the locality that this gate be left opened while the plaintiffs are carrying on their business as publicans as it is a fire escape. The Civil Bill sought a declaration of an easement for the defendant’s lands in favour of the plaintiffs for the purpose of their licensed premises and general damages. Mr. Dowling replaced the original gates with a similar one save that he has a motor connected to it which would cause it automatically to open if the fire alarm in his premises went off. Mr. Barrett insisted that the gates must be closed at 6.00 p.m. and Mr. Dowling alleges that in particular on or about the 4th or 5th March 2000 Mr. Barrett had blocked his right of way. In the agreement already mentioned dated the 26th October 1999 the Dowlings’ undertook that no opes shall be created or any existing opes enlarged on to the said laneway from the Brew Master. This is a further acknowledgement of the existence of more than one ope on to the arcade. The acting fire officer, Michael P. Lyons, states in a letter of 23rd November 1999 written on behalf of James Dunphy the Chief Fire Officer that:-

11. Mr. Lyons gave oral evidence and was subsequently recalled by the Court. His evidence will be reviewed later. However, when this was brought to the attention of Mr. Barrett his solicitor replied on the 8th February 2000 stating:-

12. This Court is not satisfied that any such limitation exists in any of the documents of title. However, it is noted that the gates were apparently purchased by some of the users of the arcade but not including Mr. Barrett. Mr. Barrett’s replaced them subsequently. They were merely put up as a protection.

13. Mr. Barrett took down the gates that were put up by the Dowlings’ who replaced it with another gate. Both parties seem to have had keys to the respective gates at all material times. The gates put up by the Dowlings’ apparently prevented a view up the arcade and it is alleged would only facilitate burglars! The proceedings Record No. 18/2000 E came before Her Honour Judge Linnane at Wicklow Circuit Court on the 12th July 2000.

14. This Court will cite the order in full as follows

15. This was signed and sealed by the County Registrar. It was agreed by all parties that Judge Linnane did retire to her Chamber to consider her judgment before she came out and made the above order.

16. On the 24th of July in the year 2000 the matter came before Mr Justice Butler in the High Court. That Court ordered that the Applicant Michael Barrett do have leave to apply by way of application for Judicial Review for the reliefs set forth in paragraph D in the statement Michael J Barrett filed on the 24th of July 2000 on the grounds set forth at paragraph E of the said application. But the Court also ordered Mr Barrett to pay such damages to Mr and Mrs Dowling as they may have suffered by reason of this order. The Order of the Circuit Court Judge is stayed on the terms expressed in the order. The reliefs sought were:-

17. E(i) The first named respondent (hereinafter referred to as the Judge) erred and acted without jurisdiction or alternatively exceeded her jurisdiction and/or acted otherwise than in accordance with the principles of natural and constitutional justice and otherwise and in accordance with law in refusing to accede to the application of Counsel and Solicitor on behalf of the applicant for a case to be stated to the Supreme Court.

18. As regards the de-licensing of part of the premises facing onto Main Street and effectively removing an existing exit from the licensed premises there was a de-licensing application dated the 12th of November 1999 and an Order by His Honour Judge Groarke on the 16th of November 1999 granting the licensee’s application and a certificate for a new excise license be granted in respect of the premises known as The Brew situated at 93 Main Street delineated on a map lodged in Court. The matter then came before Judge Linnane on the 28th of July 2000 and the Court being satisfied and this being set out on the Order of the 18th of November 1999 that pursuant to the Order of the Court the 16th of November 1999 so that a certificate do issue.

19. The authorities to which the Court was referred were numerous. The Court itself drew attention to a similar case of Green .v. Rozen 1955 2 AER 797 and also to the case concerning the power of counsel to settle cases involving the late Mr George Murnaghan (as he then was).

20. The case took many days. At an early stage the Court pointed out its understanding of the appropriate law.

21. Counsel on both sides accepted that this is the correct statement of law The Court pointed out that proceedings were going to cost a great deal of money and time that these people were neighbours and that it was in the interest of both parties to make a settlement, so the Court facilitated discussion to enable the parties to come to a happy conclusion. Then the Court insisted on proceeding with the case. It was informed that a few more minutes would settle it. The Court pointed it out that negotiations could continue while the evidence was being heard. The hearing proceeded for several days more. Towards the end of the hearing the Court was shocked to find that Mr Barrett and Mr and Mrs Dowling had never spoken once to each other and still are not on talking terms.

22. Initially the Dowlings had two exits onto the Main Street but they sold part of it and thereby, reduced the number of doors onto Main Street to one. The other door being apparently an access to the upstairs part of the premises which was occupied by a dentist. This Court is satisfied that Judge Linnane heard Counsel on both sides she heard they could not settle the matter in such a way as to enable Mr Dowling the benefit of a fire escape route when selling his premises. Both sides agreed that their respective fire advisors could meet with the fire officer and see what could be agreed. The two fire advisory consultants did agree on a technical solution, but however Mr Curran who was acting on Mr Barretts behalf made it clear at all stages that everything was subject to the approval of his client. He has stated so in evidence and in an Affidavit. It is confirmed by Mr Lyons, the acting fire officer, that he too was so informed. Nothing was agreed until everything was agreed. Mr. Barrett’s approval was essential.

23. The proposed solution was that if the push-bars on the door into the arcade were pushed it would automatically open the gates onto the Main Street. However in Mr Barrett’s view it would undoubtedly be a handing of control of the arcade to Mr and Mrs Dowling. He had also grave concern about night time access to the arcade. At the resumed hearing on the 21st of July Mr Toal on behalf of Mr Barrett asked to be allowed to call evidence. Judge Linnane took the view that everything which had been agreed on the 12th of July had not been fully implemented and refused to hear Mr Barrett or any other evidence, she did hear Mr Fox the electrical advisor to Mr and Mrs Dowling. She also heard Mr Lyons the acting fire officer who acknowledged that Mr Curran had said he had no concluded instructions from Mr Barrett. It, it was merely an exploratory meeting from his point of view. However the Judge took no heed of that matter. She took the view that Mr Barrett was changing his mind. She made apparently an Order requiring the works to be done forthwith. Mr Toal asked her to state a case for the opinion of the Supreme Court to question whether an ordinary pedestrian right of way can be converted from a owner into a fire exit for public safety. The judge rejected that application. An application was mooted on the 31st of July to hold the Dowlings in contempt by continuing to erect and make operative their gates. These matters came before Mr Justice Finnegan (as he then was) on the 9th of August 2000. The Dowlings consented to deactivate the system until further order or determination of these proceedings.

24. It was argued that the learned Circuit Judge had made two Orders but that only one Order was being impugned. It might have been neater if they impugned both Orders. However the Court is satisfied that the initial Order is merely by way of an interim Order and is subsumed into the subsequent Order so the Court was satisfied that both Orders had to be read one with the other and that both Orders are before this Court. The draft Order was prepared by the solicitor for the Dowlings and was not submitted to Mr Barrett or his solicitors for approval. The Order of the 12th of July recites that the matters be adjourned until the 31st of July to allow the agreement to be implemented. The two Orders namely the 12th July and the 21st July were in fact drawn up and certified on the 26th of July so that neither Order was before the Circuit Court on the date of its making. Mr Barrett does not deny that there was some consent as of the 12th of July however his case is that he had consented to see if a system could be organised and a modus vivendi would be acceptable to himself and it was deemed workable by the engineers and acceptable to the fire officer. He is disputing that he ever agreed to the purported structure of the consent in the Order. Indeed the Order is certainly odd in that it deals with the property interests of other parties who are not before the Court and were not parties to any “consent”.

25. Although initially Mr Barrett seemed to suggest that there was no right of way it was conceded by his Counsel very properly that there was an emergency exit. They pointed to the fact that the two steel doors in the arcade could not be opened from the outside but only from the inside and that is what the fire officer and the Dowlings were trying to do was expand this right of way with a greater burden on the other tenants. The fire officer could not force Mr Barrett to do anything. Mr Barrett’s contention is that when the matter came before the learned Circuit Judge on the 12th of July the judge asked whether Mr Barrett was prepared to go along with the fire officers requirements. Mr Barrett attempted to express that both sides get together and see if the matter could be resolved to the fire officers satisfaction so the matter was put back from the 12th to the 21st of July. When the matter came back to Court on the 21st the Dowlings’ through their Counsel said everything had been agreed and Mr Barrett stated through his Counsel that everything had not been agreed. The Circuit judge heard evidence from the Dowlings’ side and concluded that there had been an agreement but would not allow Counsel for Mr Barrett to call his client and Mr Barrett had no opportunity to make the point that he did not have to do anything to satisfy the fire officer. These requirements were being imposed on the Dowlings. In the opinion of this Court the Circuit judge seems to have been unfair in her handling of the matter. Of course she was probably familiar with the litigation between these parties and obviously was doing her best to try and resolve a persisting feud.

26. The Court from early in the case was concerned about the increased user which might occur if there were a fire or other emergency in the licensed premises. Also whether the Dowlings’ should control the exit from the arcade; that if a door were opened in their premises it would automatically open the exit from the arcade to the Main Street. The fire officer did not want people pouring out into the arcade and not being able to escape therefrom.

27. Both parties are comparatively new arrivals in this area. Mr Barrett purchased his property from Clare Mackin in October 1997. Mr Barrett agreed he did not believe at first the Dowlings had any right of access to the arcade but accepted in evidence and indeed in earlier proceedings that they had access for the purpose of bringing in and removing barrels and other kegs. Mr Barrett had put up a control access system with the consent of other users of the arcade but had not involved the Dowlings’. In February 2000 the shutter was taken down to be replaced by an electrified shutter the Dowlings’ attached and controlled by The Brew public house. This was done without consultation. Mr Barrett had in fact ordered ornate gates at both ends of the arcade. He was shocked to find his original gates or shutter were removed and a new shutter which was actually solid could not be seen through and was mechanised from The Brew public house and was controlled from The Brew public house. Mr Barrett in his evidence persisted in the view that nothing was agreed unless everything was agreed. Mr Lyons was during the periods 1999 and 2000 or of it employed as a fire prevention officer under the Chief Fire Officer in the Wicklow County Council. He had inspected the premises on the 23rd of November 1999. To assist Mr and Mrs Dowling in their application for de-licensing part of the premises. He concedes that one can trade without complying with the fire officers requirements. He stated that it was necessary to have a second fire exit because of the flooring area of the premises allows more than 50 people to be on the premises at any one time and that the distance from the furthest point on the premises to a single fire exit is exceeded. He found that the gates at both ends of the arcade were padlocked at night making it an enclosed area. He was relying on escape regulations made in 1985 and in pursuance of the Fire Services Act 1981.

28. He attended Wicklow Circuit Court on the 12th of July 2000. He said that Judge Linnane wished the parties to have their technical representatives to explore and to come to some sort of common agreement which was very possible and to return to the Court with some form of technical solution that was acceptable to Mr Lyons on behalf of the fire authority. He felt according to Mr Lyons that it would be possible to come to common understanding and an agreeable solution to the issues raised. Mr Lyons said that Mr Fox acting on behalf of the Dowlings had put up a suggestion which he found acceptable but that he had no dealings with Mr Barrett’s side at that stage. Therefore it wasn’t the parties who had agreed, but merely Mr Dowlings’ representative. He never told the Court that there had been agreements between the parties. On the 18th of July he met Mr Fox on behalf of the Dowlings’ and Mr Curran on behalf of Mr Barrett at the Fire Station in Bray. He confirms that Mr Curran explained that he was there to explore and to discuss a technical solution on behalf of Mr Barrett but he did make the qualifying point that he wasn’t in a position to make a decision, and that he wasn’t instructed to make a decision. “It appeared to me that Mr Fox was able to act in that part for the Dowlings certainly I was able to act on that part for the Fire Authority, but Mr Curran specifically made the point that he was not in a position to actually make a definitive decision on behalf of his party's side.” Mr Lyons had not further contact with Mr Curran, he received a final specification from Mr Fox by fax the 20th of July and was satisfied with it. Mr Lyons was absolutely certain that he informed the Circuit Court Judge of his own understanding on the 21st of July that Mr Curran on behalf of Mr Barrett had made the point that he was not in a position to authorise any agreement. He was absolutely certain that before he left the witness box he made the point to the Circuit Judge because Mr Curran had expressed it on more than one occasion at their meeting on the 18th of July. He made it clear to the Circuit Judge that this proposal was acceptable to him and to Mr Fox but that Mr Curran had not committed himself and could not commit himself, that really it was a matter for Mr Barrett and that Mr Barrett had not said yes or no. The Circuit Judge asked him if there was agreement between the parties as to the solution would I be in a position to give a letter of no objection and Mr Lyons confirmed that he would. He did in fact subsequently give such a letter. Mr Lyons wrote to the Dowlings' on the 21st of July, he also sent a letter to the County Registrar because he felt it was necessary to put in the qualification that neither in writing or orally had the Fire Authority received confirmation that Mr Barretts side had agreed to the technical solution that had been reached.

29. Mr Dowling removed the subsisting roller shutter which had been erected by the traders in the arcade and replaced it with an electrical motor connected to his fire alarm so that if his alarm went off it would raise the shutters. The fire officer expressed after the 12th of June his specific view was that he was to meet with technical representatives of the two parties to thrash out and to explore and try to come to an agreement on the technical solution that the parties could agree to that would balance all the rights and the views of the different parties. Mr Barrett was concerned about a set of push bars that were on the side entrance that were within the curtilage of pub. They were not properly under his control. However his expert Mr Curran raised two other problems, one being the emergency lighting and the other being that the mechanism on the gate were on the wrong side from where it should be. The fire officer agreed that these were nothing more than a snag list. Also Mr Barrett was very conscious and very protective of his rights as a freeholder and he saw the behaviour of the Dowlings' as an invasion of freehold rights. The fire officer thought the problems were minor and could easily be resolved. The Court considered in the fire safety regulations mainly regarding the escape routes in particular paragraph 249 of the 1985 Statutory Instrument. If a fire started if there was nobody on the premises of the public house to entriger the motor on the gate and the gate would not automatically open. The fire officer took the view that the side door with the push bars was and always had been the exit from the pub. The fire officer had no real contact with Mr Barrett personally about the fire requirements not merely of the public house but of the arcade up to and including the restaurant.

30. Mr Toal, Barrister at Law, gave evidence that he attended Wicklow Circuit Court before Judge Linnane the 12th of July 2000. He was lead by Mr Leonard SC. The learned Circuit judge took the view there were two conflicting systems. She suggested that it should be possible to agree a compromise between the respective desires of both parties. It should be possible for both parties to agree and save a great deal of time and trouble and expense. Mr Toal was sent back to talk to Mr Barrett about his approach to the consent order which the judge suggested. To quote Mr Toal:-

31. It was agreed that the matter would go for exploratory talks. Mr Toal said there was certainly not the agreements that the Dowlings' should go ahead and do works on the gates between the 12th of July and the adjourned date. Indeed his Solicitor wrote a letter on the 13th July making this point impliedly. Mr Toal understandably was not very clear about the matter as he hadn’t seen the purported order prior to the present proceedings. However he is clear that the order is incorrect where it states “and upon the Court being advised that the matter had been agreed between the parties to the satisfaction of the fire officer” is not correct. On the 12th of July the agreement was to go off and see if a regime could be put in place that would satisfy both parties whatever was agreed between the parties but it would be the overriding acceptance by the fire officer. The fire officer did not on the 12th of July ask to view the respective systems. At the resumed hearing Counsel for the Dowlings' advised the Circuit Judge that the matter had been put back with a view to see if matters in the alleged consent Order (which hadn’t yet been finalised) had been put into place. He replied that the essentials of the case had been settled and the only issue was one relating to costs. Mr Toal says on the first available opportunity that he had he addressed the Court and advised it that in so far as an agreement had been reached on the previous occasion in Court it had proven impossible from a practical point of view to bring it any further than just an agreement and he said that this arose for a variety of different reasons, on one hand the practical difficulties the agreement had not been reached in so far as it was possible to satisfy both parties on the one hand, but he then went on to advise the judge that there were weighty and significant legal arguments to be brought to bear on the case. Mr Toal thought they were so significant that he was going to advise her to stay the case and seek the opinion of the Supreme Court on points of law. He listed five points. The Circuit Judge who was well within her jurisdiction declined to state a case to the Supreme Court. Mr Fox said that Mr Barrett was present at the meeting and had agreed to everything. Mr Toal pressed the judge several times to allow Mr Barrett to refute the evidence of Mr Fox, but the judge seemed satisfied that the matter was concluded so as not to be revisited despite Affidavits from other witnesses to the contrary Mr Toal was very clear Mr Barrett had not changed his mind. Mr Toal never told the Court that his client had changed his mind. According to some of the evidence Mr Curran was not present. He was the advisor to Mr Barrett. The learned Circuit judge apparently asked was he present but was told he was not. Mr Toal was very insistent that the matter had been adjourned and was exploring the possibilities of getting agreement of the technical problem and at all times he and his client Mr Barrett were concerned about the erosion of Mr Barretts property rights if the control of this gateway was given over to Mr Dowling.

32. It is clear to this Court that the Circuit judge who had previous experience of both parties was trying to knock their heads together. She was trying to get a solution acceptable to both parties but primarily to satisfy the needs of the fire officer. She was obviously very well intentioned and perhaps slightly distressed at the failure of the two parties to sort out a relatively simple matter. The Court later considered the extraordinary way in which both orders were perfected. However in the view of this Court she should have allowed Mr Barrett to give evidence and if necessary to hear Mr Curran. As well as that the purported Order seems to this Court very wide ranging. It seeks to impugn the property rights of other persons who are not parties to these proceedings in that they are the traders and the restaurant which was admittedly owned by Mr Barrett but was licensed to another person. Mr Toal is very clear that the Order which was perfected on the 26th of July was not an accurate reflection of the Courts decision.

33. There was an application for Judicial Review before the actual draft Order was perfected by the County Registrar. Mr Toal seems to think the perfected Order was two Orders. When we consider Mr Murphy’s evidence this may well be so.

34. It is clear having reviewed the evidence that Mr Barrett and his legal team were at odds with the Dowlings' and their team about what actually happened on the 12th of July. It also appears that Mr Lyons the fire officer was not available for part of the time between the 12th to the 21st. It appears that a letter dated the 25th of July sending in the two draft orders of the 12th to the 21st of July to the County Registrar were sent by the solicitor for the Dowling. That letter is dated a day after Mr Justice Butler had given an order restraining the stay of the Order in question. This letter had not originally been discovered by the Defendant.

35. In the arcade there are two adjoining shops run respectively by a father and son both named Hugh Taylor. One was a hardware shop and the other was a locksmith and they have been there since July of 1983. Mr Hugh Taylor senior said that there had always been a gate on the arcade. When he came in 1983 it was a wooden single gate. He was present in the Circuit Court when he heard the Circuit judge say that the cost of maintaining the gates would be borne by the traders. He was a trader. He was not a part of these proceedings, he had never consented to the Order nor would he.

36. That in itself would condemn the Order. The Dowlings' had commenced to open the gates and on occasion leave them open apparently for long periods until the Court granted an injunction on the 8th of October last. Until recently it was the last trader out who closed the gate and put on the lock and chain. Every trader including the Dowlings' had a key. This witness said on several occasions he saw the gates open when they should have been closed and locked. Mr Walsh argued that this evidence was irrelevant and the Court had already granted an injunction and admitted the evidence. On one occasion Mrs Dowling stated that she could have the gates open 24 hours as they had a right of access. Mr Taylor told her her access was not being denied but for security reasons the gates should not be left wide open. Counsel state that Mrs Dowling would say that any time they left the gates open that they were on the premises. Counsel suggested that the premises were never at risk during the time that the gates were open by his client. It is clear that all the parties and the owners of the various shops in the arcade want gates. The traders would be perfectly happy with the traditional lock and chain.

37. The original wooden gate is now an ornament screwed to the wall at the beginning of the arcade. The gate was more or less permanent except at one period when the front of the premises was being replaced. Both Mr Taylors found the old system satisfactory and are worried about the new system because “the pub controls the feature totally and we are only linking into their system”. Ms Mackin is familiar with the arcade for about 35 years. Her late husband owned it. He ran what is now the Dowlings' pub and was known at that time as Tartan Lounge. He also owned and ran the arcade. The shops were built about 23 years ago. She says that the doors from the public house were never used in connection with the public house. They could be used for bringing in kegs of beer and so on. She maintains there was no door leading into the arcade at her time. That door and the exit were put in by her successor in title. She says that it was built around the same time as the arcade was built which would be about 23 years ago, namely 1978. She believed that it was the Dowlings' who put up the steel doors, they could only be opened from the inside. She did see those doors open during the daytime quite often. She stated that there has always been a gate of some sort where the arcade meets Main Street except during the times when the front of the premises was being reconstructed. The padlock and chain system always worked perfectly in her view. On hearing a report she went down after 7 p.m and found the gates open. When she attempted to close them Mr and Mrs Dowling interfered and told her to leave them alone. Mr Dowling did eventually close them but they were open at 7 a.m. the next morning. Mrs Meckins evidence is very important so that these steel doors which was apparently there the time the arcade was built in 1978. Inside those steel doors there are the usual ordinary doors that are associated with a pubic house and which look antique. It has the lighted sign indicating an exit over it. The exit can be clearly seen by anyone sitting in the bar. The Court indicated that it is very difficult to abandon a Right of Way. It seems as a matter of probability that there is a Right of Way from this pub out onto the Main Street. The Court also indicated that the owner of the arcade is entitled to put a gate, but that whoever uses the gate must close it after them. All persons rightfully using the Right of Way must have a key to open and close the obstruction. That statement of the law was accepted by Counsel on both sides. Mr Keane for Mr Barrett accepts his clients initial contention that there was no Right of Way but he has resiled from that position at an early date. Mr Walsh agrees that his clients opening premises at all hours of the day and night and leaving the gate open was reprehensible behaviour. Mr Curran is strongly of the view that the whole intention of the week after the 12th was to enter into negotiations to see how the fire officers requirements could be satisfied. Mr Curran suggested that something be put on the post of the gate to cause it to open. The fire alarm is frequently activated accidentally with no cause and that it might mean that the gates may suddenly open at two in the morning as the result of a false alarm. The fire officer added three items to his requirements after the Order of the 12th of July. Firstly that the door leading from the public house into the lane way should not have a break glass unit next to it, but it should have a push bar and that push bar should activate the fire alarm and open the gates. Secondly the arcade should be illuminated at night time or during darkness. Thirdly while not a request of the fire officer, a point raised by Mr Keane as regard to the false alarm of the public house, the manner in which the fire alarm should be deactivated from the gates when the public house is not occupied.

38. The Court has already held that the Order of the 12th of July is before this Court and it is absorbed into the Order of the 21st of July. However the Orders were drawn by Mr Murphy solicitor for the Dowlings', sent to the County Registrar and possibly to the judge, corrected and returned to Mr Murphy. Solicitors for Mr Barrett had no input. If that is the system in the Circuit Court it is a bad system and this Court is satisfied that it can and should deal with the Orders of the 12th and the 21st of July. Mr Walsh stressed very strongly that this order was never challenged or appealed or judicially reviewed. Mr Walsh alleged that Mr Barretts behaviour was done to interfere with the Dowlings' prospect of selling their public house and therefore suffered damages. Mr Dowling bought the pub in 1989 and is joint owner of it with his wife. Mr Dowling said that he was present in Court and that the Circuit Judge asked the legal team representing Mr Barrett did they consent to the Order. They said they did. Mr Dowling disagrees with a lot of witnesses when he says that there was no gateway for about 5 years. The rest of the evidence suggests that there was a gateway there at all times save for the period when the front was being restructured. His view is not supported by Ms Meckin or either of the Mr Taylors who gave evidence or Mr Barrett. There was no gate there until Mr Dowling and the other traders erected a shutter in either 1994 or 1995. He insisted it was not there before 1994. He insists that there was no gate from when he purchased the premises in December 1989 to 1994-1995 or shutter or division. The original premises he purchased were number 93/94. In the year 2000 he decided to de-license part of the premises. Last October while this case was at hearing Mr and Mrs Dowling opened the gates and left them open. They did this they said out of a sense of frustration. The Dowlings' through their Counsel and indeed Mr Dowling himself accepts they should not have done that. The Court explained that if there were a gate it was their right to open it to get through, exercising the Right of Way, but they must close the gates after them. The gate in question had been put up by the traders themselves for security and Mr Dowling had contributed. Mrs Meckin who was the owner of the arcade at the time gave permission. Mr Dowling himself took down that gate in February 2000 and replaced it with a very similar shutter but not identical, which was electrified through his alarm system. After Mr Dowling put up his electric shutter Mr Barrett took it down and at present the gate is one provided by Mr Barrett. Mr Dowling worked on the basis that there was agreement to the electrification of the gate. Mr Keane in his cross examination of Mr Dowling succeeded in establishing in great part that Mr Barrett did not have anything to do with the loss of purported sales. Of course the premises can be used without the fire officers certificate if there are less than 50 people on the premises. Another trader Mr Brennan who has been there since 1976 swore that there was never a gate there until 1995, Mr Brennan however stated he was an “ideal tenant” but it appears that in fact he was sued for arrears of rent by Mr Barrett and he counter claims against Mr Barrett regarding repairs to the arcade and the dangerous condition of the arcade. He lost the counter claim, Mr Barrett won the claim. Mr Brennan says this was due to the fact that his wife had just had triplets and that “he couldn’t give it his best shot” The Court must state that Mr Brennan was to put it mildly an unsatisfactory witness. Next witness was Mr Fox who was the fire safety advisor to Mr Barrett. Much of the requirements of the local authority could be fixed by a vendor or purchaser summons of “The Brew”. However the major concern of the fire department was the fire exit at the side of the pub. If you escaped through the existing side door you would enter a dead end situation because you wouldn’t be able to get away safely onto the Main Street. The fire officers required that there should be lighting in the arcade so people could escape from the pub away to the Main Street. Mr Fox undertook on oath to the Circuit Judge that he would electrify the gates and while doing so to consult with Mr Barretts fire expert Mr Curran and the electrification process was to be carried out by Friday the 21st of July. The restaurant at the far end of the arcade beside the car park was owned by Mr Barrett. He wanted some sort of buzzer whereby if someone wants to come to the restaurant from Main Street could press the buzzer and then the manager of the restaurant could open the gate on the Main Street. Mr Fox was anxious to accommodate everyone. However his clients main concern was so that they could sell the pub. Mr Fox was open minded to any request that was going to be put forward so long as they were reasonable. The fire officer wanted an illuminated sign facing up the arcade from the entrance on Main Street indicating that it was an emergency exit. If you wanted a push bar on the exit door in the pub Mr Fox said that this was no problem. There was a meeting on the 18th of July between the two advisors and Mr Barrett was present and the fire officer. Mr Barrett was concerned that the fire alarm might go off during the night and the pub would actually be empty yet the door to the arcade would be open. It was suggested that when the pub was closing they would disconnect it from the fire alarm system at night time. At the resumed hearing on the 21st, Mr Toal explained that they didn’t want a bogus system of electrification to continue. Judge Linnane was not happy because Mr Fox had given undertakings on oath the previous week to have the work installed and completed by that Friday, so she asked to have the work done by the 27th of July a Thursday. Mr Fox was asked by the judge to come back to the witness box. The judge asked Mr Fox why the works were not done. Mr Fox was still under oath and was told by the Circuit judge to go ahead and get the gates electrified. The fire officer presented a letter saying that he was satisfied on this occasion. The Court was satisfied with this letter and directed Mr Fox to carry out work to be done by the 27th of July. Mr Fox agrees that Mr Curran did not have power to agree anything unless and until his client Mr Barrett had agreed to it. He agrees “Nothing is agreed until everything is agreed”.

39. Mr Leonard SC gave evidence that he lead Mr Toal on behalf of Mr Barrett on the 12th of July. He believed it would be a full hearing of the equity proceedings. However he says that after he had stated whom he represented” the judge intervened to make a comment that she had read all the various Affidavits and she knew all about this thing. He got a distinct feeling almost from the word go, that we were all “heading in the wrong direction”. Now maybe I should have stopped and said I am here to deal with the Right of Way and because a row with the judge but I would try and avoid that kind of scene as much as I can. It’s not really my style. Mr Walsh opened the case with a comment about why we were all in Court; namely that his clients had entered into a contract to sell the premises and they could not sell the premises unless the fire officers requirements were met. He then asserted a history relating to the manner in which gates had been put up and taken down and that history did not accord with my insertions in the letter of the 4th of July. It was at that stage as I say in the Affidavit “I stood up and explained what the situation was. I have gone through that in the Affidavit in some detail while I should say is that I did my very best on Sunday to write out in my own handwriting a careful and accurate statement of what has happened ”.

40. His recollection said Mr Walsh spoke first and he spoke and then Mr Walsh intervened and said something like “My clients will do whatever the fire officer requires”. Mr. Leonard explained to he judge that his client was outraged at what was going on and that he did not see that he should be forced to comply with something in the way in which it was done. But firstly Mr Dowling had put up a shutter without Mr Barretts permission. At the time that Mr Barrett was away on holidays or something and at that stage Mr Barrett had already purchased a new gate which he was going to install. Mr Walsh was saying that his clients are already proceeding to wire up the system on Mr Barretts property without Mr Barrett ever having given permission for it. The judge kept saying:- “What is your clients objection to what the Dowlings are doing, what is the problem with having a system which is more secure for the traders and will suit the Dowlings?” He said that the judge “was more interested in forcing the parties to compromise from the bench during the course of the hearing”. He felt that they should have gone for a declaration as to the nature and extent of their Right of Way rather than seeking to do it first and then wait for an injunction. Mr Leonard explained that his client (Mr Barrett) tried to put in a gate the same system that was in operation at the time, namely the lock on the gate would be open and shut by the first and last person to using it. There was a restaurant at the top near the church and it was intended that the restaurant would be opened in the evenings and that a video control system of some sort was going to be installed with the new system. This was the change that Mr Barrett was making to the pre-existing system. This change would be to facilitate the restaurant. Mr Leonard deemed that the intention was that if someone on Main Street pressed a button it would activate an alarm inside in the restaurant so someone there could check to see who it was and discussion could take place. The gates could be opened electronically by the restaurant and closed electronically as the people came in. Mr Leonard was explaining to the Circuit Judge that Mr Barrett had done nothing wrong but he was explaining what he intended to do. Mr Barrett had always intended to electrify the gates, he naturally wanted to keep control of it. The judge asked the question could what Mr Walsh was proposing to do for the Dowlings would his system be modified to meet the restaurant owners requirements, that is namely Mr Barrett. Mr Walsh SC had previously stated that his client was prepared to do anything at his own expense to meet the fire officer’s requirements. “We were than asked would we go along with that”. After a pause word came back from Mr Barrett that he would consent to see if the two systems could be merged or modified to meet the fire officers requirements. The question which Mr Leonard was asked by the Court and which he put to Mr Barrett was whether Mr Walsh’s system could be modified to meet Mr Barretts requirements. Mr Leonard remembers that the judge interjected when he stated that the gates had always been locked after hours, the judge made a remark at one stage that circumstances can change, in other words what had been a perfectly acceptable practice for 30 years or so apparently could become an unacceptable practice. He adds “this is why she was pushing to get Mr Barrett to agree to something that suited the Dowlings” He has fear that there was no judicial determination in relation to the Rights of Way”. The hearing was about Mr Walsh’s clients problems about a fire escape for the pub”.

41. Basically the concern of Mr Walsh at the Court was the Dowlings (his clients) had agreed to sell the property and could not sell it because they couldn’t get the fire officers certification. Mr Walsh was looking for a fire escape and nothing else”. The Order of the 12th of July states that the matters had been agreed between the parties to the satisfaction of the fire officer. Mr Leonard says that is absolutely incorrect. No one told the Court matters had been agreed between the parties to the satisfaction of the fire officer. Mr Leonards concedes that the Order of 12th of July does not correspond with what happened at all. Mr Leonard does not remember the judge saying “By Consent”. The intention was that the gates were to be electronically controlled by The Brew Public House and by the restaurant. It could be opened by any keyholder. The Dowling’s in the view of his Counsel had been reconciled to something of that nature. Mr Leonard took the view that some of the matters in the Order of the 12th of July were imposed by the Trial Judge and not consented to by the parties. While there is some confusion on the matter this Court is satisfied as a matter of probability there was a key since Mr Hugh Taylor arrived in 1983 to a gate at the Main Street Junction for this lane. In fact it was known at that time as “The Village Gate Arcade”. Mr Dowling who is comparatively new to the area does not accept that proposition. The gate was removed for a period during which the front of the premises had been revamped. The Court is satisfied that for most of the relevant time there was a gate. A gate was put up by Mr Dowling and the other traders in 1995. In early 2000, without the consent of Mr Barrett, the Dowlings put in an electrified gate which was basically controlled from his premises. The Court at an early stage had stated that the owner of the lands had power to put up gates as long as he provided a key to all the legal users. That was accepted by Counsel on both sides. By the electrified gates put up by Mr Dowling, there was an ascertion of a right so to do. In that he was mistaken. He had no such right. Mr Barrett was away at the time and on his return he removed the gates. He had already ordered gates. These new gates were then placed in position and they are presently there. Mr Dowling electrified these gates, he says in accordance with a Consent Order of the 12th of July 2000, and which are controlled from his premises. However in August there were de-electrified. This Court is satisfied that the Order of the 12th of July and indeed also the Order of the 21st of July were drafted, presented, and approved on the unilateral application of the defendants without the knowledge or approval of the Plaintiff, and were drawn up two days after the Plaintiff’s successful application for judicial review on the 24th of July 2000 and the alleged doctoring of the Order by the judge or registrar. Long before Mr Barrett was involved directly in the barrier in the arcades there had been several attempts to sell the premises. The purchaser’s solicitors refused because they were not satisfied there was a marketable title. The matter could possibly have been resolved by a vendor and purchaser summons. Basically Mr Barrett concedes now that the Dowlings have a Right of Way but that it is a restricted one, it is not what would be required to enable it be a Right of Way for the purposes of their licensed premises.

42. Mr Dowling had explained his frustration due to his inability to sell his premises without an adequate fire escape. However on many occasions he took the law into his own hands which he most certainly should not have done. He opened the gates on a number of occasions when there was actually no need for them to be open and insisted they remain open.

43. There is no doubt that after the 12th of July both sides took a different view of what was agreed or not agreed. A great deal of the evidence was based on their understanding of what had happened in the Circuit Court.

44. Mr Fox stated that he had undertaken to the Circuit judge to do the work and it was not done when he returned on the 21st of July but he undertook to do it then because the judge was displeased. By the 27th of July it was done.

45. This Court then recalled Mr Lyons who at the relevant time had been the acting fire officer. As far as he was concerned the licensed premises finished at the wall of the public house and did not include the arcade. He believes that he pointed out to the Dowlings and their representatives that it was a matter of negotiation between themselves and whoever owned the arcade because he had actually never met Mr Barrett through all that time. He agreed with the Court that there were other ways in dealing with the problem of having some sort of a gate which could be readily accessible to anyone in the case of an emergency such as a fire. He agrees it was really left for negotiation between the two parties. He was not insisting on it or enforcing it in any way. As far as he was concerned it was a solution, it was a proper solution. It was a matter for the respective experts to come up with solutions, to notify him of the consent of both their respective parties. This witness confirmed the evidence of Mr Curran that as far as Mr Barrett was concerned nothing was agreed until everything was agreed. In fact it was said at the beginning of their meeting and at the end of it. Mr Lyons confirmed that there was at least one fire exit from the licensed premises into the arcade. He was quite satisfied that there was an exit where the exit sign showed inside in the licensed premises. Mr Lyons also had suggested that there should be some sort of emergency lighting in the arcade, that it would be required if the restaurant at the top of the arcade was to use it as an emergency exit and why not do it now? It was not an essential item but it would benefit both parties. Gates could be automatically opened by someone using the exit into the arcade from the pub but also there’s a break glass unit beside the exit which you could press and thus open the gates. So anyone in the alley way could get out if they wanted to, there was absolutely no problem with that. Mr Dooley is one of four auctioneers which specialise in the sale of public houses. He sold the premises in Arklow to the Dowlings in November 1998. They had put it “quietly” on Mr Dooley’s books to sell the premises in Bray from about December 1998. Mr Dooley was notified by Mr Barrett that the Dowlings had no Right of Way to his arcade from their premises. Mr Barrett had contacted Mr Dooley to say that he understood the pub was for sale and did he (Mr Dooley) understand that there was no Right of Way attached to the pub?

46. It would appear that the first proposed contract for the sale provided that the purchasers would negotiate the purchase of the lane way adjacent to the property known as the village arcade and that the contract was signed subject to this purchase going ahead. In the first contract Dowlings refused to pay anything towards the cost of purchasing the Right of Way because they maintained they had one according to their solicitor Mr Brennan. Mr Brennan was present as solicitor for the Dowlings on the 12th of July as the judge felt there was very little between the parties and she gave time for further negotiations. Then it appeared that an agreement had been reached between the respective engineers and she called the fire officer and Mr Fox. She took down what they said and she adjourned the case and said she’d give judgment at dinner time. At 1.10 p.m. She enunciated a number of points that were agreed. Mr Brennan confirms that what was in the Order of the 12th of July was agreed but the judge asked “Is it on consent Mr Leonard? He said it was. Having adjourned the equity civil bill and the publicans license application until the 21st of July to enable the agreement to be implemented. The Circuit judge was annoyed that the Order she regarded as a Consent Order had not been implemented and she adjourned it for another week to the 27th of July. The Circuit Court had granted a certificate to enable the Dowlings to get a license but at the renewal Mr Barrett objected on the grounds that the lane way was not licensed and also that the Dowlings were not trading. The objections were dismissed by Judge Haughton because the notice given had been inadequate. Mr Brennan agreed with the Court that Mr Barrett could not be blamed for the first potential purchaser pulling out of the sale. It also transpires that the second so called contract was in fact halted by the Dowlings deciding not to proceed with the contract because Mr Brennan wrote a letter of the 31st of January 2000 “Our client is not proceeding or partaking in any sub-sale as no letter of undertaking et cetera is gone to the fire officer in an effort to complete the original deal”.

47. However the sub-purchaser was Mr Brady and ten days after that letter Mr Brady offered another £100,000.00 to the Dowlings. Mr Keane, in a very careful cross examination of Mr Brennan got him to concede that Mr Barrett was not responsible for ending either the first or second contract for the sale of The Brew.

48. As regards the Order of 12th July, 2000 the Court is satisfied that the Order was drafted, presented and approved on the unilateral application of the Defendants without the knowledge or the approval of the Plaintiff or his solicitor. It was drawn up two days after the Plaintiff’s successful application to seek Judicial Review on the 24th July, 2000. It was also comprehensively re-written by various hands after it had been drafted by counsel for the Dowlings and submitted by their solicitors and before it was eventually promulgated. The making of the Circuit Court Orders was Byzantine in its complexity, involving many hands, with the total exclusion of Mr. Barrett. The Order of 12th July, 2000 was not and could not be construed as a final Order. Several people’s rights were being affected and they were not part of the proceedings, nor had they notice thereof. This Court shall, of course, deal with the Order of 12th July, as it was subsumed into the Order of the 21st. It is clear when the matter came back to the Circuit Court the learned Circuit Judge not yet having the Order before her assumed that all she had to do was confirm that the “consent” requirements had been concluded. She did not hear Mr. Barrett’s side at all. If she had she might have discovered that the parties were not in fact ad idem. Indeed, it is the words “by consent” which was somehow inserted in the draft. On 31st July, 2000 the Respondent further ordered that the works “ordered by the Court” on 21st July, 2000 be carried out immediately. It will be noted that the terms of this Order of the 31st July, makes no reference to works agreed to be carried out, but rather ordered by the Court to be carried out. The Judge had retired to her chambers to prepare her Judgment. This Order recites as evidence as offered and the Court was advised that matters had been agreed between the engineers for both parties. But this decision was made by hearing only the evidence of Mr. Anthony Fox, Architects for the Notice Parties and by expressly refusing to hear evidence of the Applicant himself or to adjourn the matter until the Fire Safety Engineer of the Applicant could be heard. As you can see, unwittingly the Judge ignored the audi alteram.

49. The gesture is completely understandable. It is not the first time she had to deal with these parties. The Dowlings wanted an electrically controlled exit from the Arcade into the Main Street, so did Mr. Barrett want it for the restaurant which was at the far end of the Arcade. I believe the real problem was that the control of the gate was being taken over by the Dowlings. If only these parties could talk together, perhaps even find some financial arrangement this simple matter could surely have been resolved. The issue of the making of the Order, (which was after the Order of the 12th) is incredible. Both Orders were obviously made to try and find a solution. Both parties wanted an electrified gate, but only one party, Mr. Barrett, was entitled to put up and maintain it. If he had however given permission to the other traders to put up a gate previously I am sure he could have been persuaded possibly if there were a financial inducement to give such a permission in this case as he also wanted an electrified gate. The broad principles of common sense and fair play are applicable. It is argued that the fire officer had no right to turn a private right of way into a public fire exit as this was an imposition or burden placed only on a public right of way. It is also alleged by the Plaintiff that the learned Circuit Judge of her own motion and without any evidence to support therefore gave an Order outside of the Pleadings when in actual fact that exceeded her jurisdiction. There had been earlier proceedings between the parties relating to the loading and unloading of barrels and on its pasaging. Those proceedings had been settled by an agreement in which the following appears

50. However, Mr. Barrett originally denies their right of way from the premises onto the Arcade now says it was “restricted”. There is nothing in the Title Deeds to make it a restricted exit. However, the reality is that inside the pub there are swinging door with the word EXIT over it illuminated by an electric bulb, beyond that there are two steel doors opening out to the Arcade. This Court is quite satisfied that there is an existing right of way from this pub on to the Main Street in Bray which was in existence before either of the parties here became property owners there they must take their property as it existed from its physical lay-out. There had been two exits from the front part of the Brew Master premises. One was closed and separated. Then the premises had only one exit to the front. There is evidence and it is clear also from visual viewing of the door that it has long been there and is, and was, an exit. Therefore the Court will make the necessary declarations in the equity proceedings in dealing with various findings that this Court had made. It is very sad that two competent and intelligent businessmen should spend so much time fighting in two Courts incurred so much costs over problems which reasonable men could, and should, resolve amicably. The right of way might have to take a larger crowd than normal and at the present it is seldom if ever used. That would only be in an emergency and that emergency exists at any time, indeed, long before the present owners had got involved. Excessive user means something which is improper and unlawful. Obviously the fact that the Arcade is of long standing was obviously intended because of its nature to be an exit rather than an entrance. Doorways were obviously to be used exclusively for exit on to the right of way Arcade. This right is valuable even if it were not used for many years. The Court could not find that it had been abandoned as it is a right which potentially enhances the value of the Brew lands. Dodd J. in Flynn v. Harte 1913 2 I.R. 322 said “The question in most cases is - convenience or cussedness.” The equity proceedings then met with the plea that it is an abuse of the process of the Court when there is an attempt to re-litigate matters which were the subject matter of consent orders. However, this Court is not happy about the problems of such alleged Consent Orders and proposes to deal with the equity matters in the hope that with the clarity of declarations and Orders parties might start to talk to each other and behave in a neighbourly fashion.

51. The Court doth Order and find:-

52. The Court doth make no Order as to damages.

53. The Dowlings undertake by their Counsel not seek to enforce or use in any way the purported Orders of the Circuit Court of the 12th and 21st July 2000.

54. The Court makes no Order as to costs.