THE HIGH COURT

No:  130p 2002

Between:

The County Council of Dun Laoghaire Rathdown
								Plaintiff

AND

John R Shackleton and Jackson Way Properties Limited
								Defendants

Judgment of O’Sullivan J delivered the 23rd day of January, 2002

	In this application the plaintiff local authority seeks an interlocutory injunction preventing the first defendant as statutory arbitrator from embarking on hearing a claim for assessment of compensation by the second defendant in respect of the compulsory acquisition of some 24 acres of its land by the plaintiff in connection with the construction of the south eastern motorway in south County Dublin. 
	In its proceedings the plaintiff claims, inter alia, a declaration that the aforesaid claim for compensation which is predicated on a rezoning of the relevant lands from agricultural to industrial use in the 1998 County Development Plan constitutes a claim for unjust enrichment and further claims a declaration that any award on foot of such a claim constitutes unjust enrichment.
	The basis of this claim is information made known by the Tribunal of Inquiry into Certain Planning Matters and Payments (“the Tribunal”) showing that the Tribunal has received information to the effect that substantial monies were paid to elected members of Dublin County Council by and on behalf of Paisley Park Investments Limited and/or Jackson Way Properties Limited for the purpose of securing the rezoning of land (including the lands being compulsorily acquired from the second Defendant) prior to the making of the 1993 Dublin County Development Plan and the current Dun Laoghaire/Rathdown Development Plan.  The Tribunal has also indicated that it is inquiring into this matter pursuant to its terms of reference.  
	Mr Collins, SC, submits on behalf of the plaintiff that if the foregoing allegation of bribery is made out against the second defendant then the said claim and any award on foot of it would constitute unjust enrichment of the second defendant.  Any such alleged bribery is strongly denied by and on behalf of the second defendant.  In these proceedings there is therefore an issue of fact relating to this allegation. 
	On the 22nd October, 2001, the first defendant suggested that he would commence the arbitration on the 14th January, 2002.  On the 19th November, 2001, the law agent of the plaintiff wrote to the first defendant requesting him not to fix any date pending the outcome of the allegations before the Tribunal but on the 23rd November the first defendant wrote back pointing out that the was satisfied that he was correctly appointed; that the second defendant was entitled to refer the matter to him for arbitration and asserting that he would commence the hearing as proposed.
	I am informed by Mr Collins that the first defendant then considered its legal position, took advice from Counsel who became ill and ultimately warned the second defendant on the 7th January, 2002, that it would apply on the 11th January for an interim order prohibiting the commencement of the arbitration on Monday the 14th.  An interim order was granted on the 11th January and on the 14th extended for one week to the 21st January when the matter came on before me.  
	Mr Collins, SC, has submitted that he has an arguable case to show that his client has a good cause of action.  He has referred to a number of authorities to which I will allude later in this judgment.  He has frankly acknowledged, however, that the evidence upon which he intends to base the pleaded cause of action is not yet to hand and may indeed never come to hand in the event that the Tribunal rejects the allegations referred to.  He accepts, as he must, that even if the Tribunal were to find as a fact that the second defendant had been involved in bribery as alleged this would not of itself constitute evidence in the present proceedings.  It would, however, assist him by identifying witnesses and/or other evidence, which he would intend calling or  proving in the present proceedings.  On this basis he submits that he has a good cause of action.  
	With regard to the balance of convenience he says that this weighs heavily in favour of granting the injunction.  If as a result of an award money is paid to the second defendant which is substantially in excess of what is admittedly due and if subsequently it is shown to have been wrongly paid then the plaintiff may well have serious difficulties in recovering the excess.  It is true, he acknowledges, that the second defendant has said that it is the owner of some additional 80 acres in the vicinity of the lands being taken in support of its assertion that this is sufficient guarantee to repay any excess monies.  Mr Collins submits however that this is land owned by a company outside the jurisdiction in respect of which there is a complex not to say Byzantine ownership structure, that the plaintiff has been told nothing of the status of this land - whether it is mortgaged or whatever - and that it might prove necessary to put the second defendant into liquidation and that the plaintiff simply does not know what sort of dividend the plaintiff as an unsecured creditor might receive in such eventuality.
	On the other side he points out that because the plaintiff has already entered into the land the second defendant is entitled to interest at the rate of 4.5% (Mr O’Neill, SC, says 4%) on whatever award is ultimately made from the date of entry onto the lands.  This therefore is a protection to the second defendant against any delay in receiving monies to which it is legitimately entitled.  Furthermore if, over and above that, the second defendant could demonstrate that it was at a further loss, the plaintiff has given an undertaking as to damages which is entirely reliable given its status as a local authority.  In addition, there is a public dimension to the plaintiff’s application in that it would be entirely repugnant that an arbitration should be permitted to proceed when the Tribunal has taken the allegation seriously enough to assert that the Tribunal will itself investigate it (thereby, says Mr Collins, indicating that the allegation is not frivolous or vexatious) and where the Oireachtas has determined that this allegation, among others, constitutes a matter of serious and urgent public importance sufficient to justify the appointment of the Tribunal to inquire into it.
	Mr O’Neill, SC, has submitted on behalf of the second defendant that the action itself is entirely misconceived as is the application for an interlocutory injunction.  He says that his client is entitled under statute to claim compensation, that the first defendant is obliged to proceed to assess his claim given that there is no challenge to the validity of the first defendant’s appointment.  He questions the authority, that is to say the jurisdiction, of this court to intervene at all.  He submits that the plaintiff is not claiming that there is unjust enrichment if the arbitration goes ahead but rather that there might be in a certain eventuality.
	He further submits that even if the Tribunal determines that there was wrongdoing the first defendant would still have to determine the amount of the second defendant’s claim on the basis of the existing zoning of the lands as he is obliged so to do under the relevant statutory provisions.
	The court’s jurisdiction to intervene, he submits, in the conduct of an arbitration is effectively limited to where there is a challenge to the appointment of the arbitrator or where there is a dispute regarding the provisions of the contract (and by analogy the statutory provisions) giving rise to the arbitrator’s appointment.  He makes the point that the plaintiff is not asserting any wrongdoing on the part of the second defendant and he makes the general point that the authorities relied upon by Mr Collins to establish the existence of a cause of action in unjust enrichment are all cases where the issue of unjust enrichment was not in question in the sense that the facts giving rise to the claims were in existence at the time of the making of the claim.  He further makes the point that these zoning alterations in fact enhanced the value of the second defendant’s lands so that there was no increase in the claim as a result of the rezoning and in this connection he refers to the opinion of a valuer who has sworn an affidavit in this matter.  Mr Collins disputes the logic of this.  I will not proceed on the basis that the second defendants’ valuers’ submission on this point must be accepted by the first Defendant  
	Mr O’Neill also relies on delay on the part of the applicant.  There was a delay of some three weeks from the time (22nd October 2001) when the first defendant first appointed the 14th of January, 2002, as the date until the applicant wrote (18th November) requesting him not to determine the arbitration until the Tribunal had reported on the allegation before it.  Secondly and more importantly there was a delay between the 23rd November when the first defendant wrote back insisting that he would commence the arbitration on the 14th of January, 2002, and the 7th January 2002, when the applicant first intimated that it would apply for an injunction. During this time the parties had been readying themselves for the arbitration and had committed themselves for a period estimated at two weeks from the 14th.
	In response Mr Collins insisted that the plaintiff is indeed making allegations on its own behalf and accepts that he will have to adduce evidence in support of them.  He submits that any delay on the part of his client would not cause undue hardship to the second defendant given that any preparatory work undertaken by the second defendant for the 14th of January would still be relevant when the arbitration did in fact proceed.  He pointed out that the second defendant had given no comfort whatsoever with regard to the status of the additional 80 acres owned by it or in relation to the beneficial ownership of the property of the second defendant.  They were simply leaving the plaintiff to its remedy in the event (which of course they deny) that wrongdoing by them is ultimately established in these proceedings.  He took fundamental issue with Mr O’Neill’s assertion that the first defendant would have to embark on the arbitration upon the basis now current even in the event that it is established that the relevant zoning had been wrongfully procured by the second defendant.  It was a fundamental principle of equity that a party could not benefit from its own wrongdoing.
  Conclusions
	Cause of Action
	I am aware that there is a transcript of the argument in this application which would, I assume, include references to the authorities which were opened before me.  There are also books of authorities which have been handed in by both sides. I have considered all this material.  
	In light of these authorities it seems to me that as pleaded the plaintiff does have a cause of action for unjust enrichment.  It certainly, in my view, has an arguable case to so assert and that is all that is required on an application such as this.
	The greatest difficulty on the application arises in relation to the evidence which the plaintiff frankly acknowledges does not at present exist and may not exist.  Can it be said, therefore, that the plaintiff has a good cause of action?  I have been referred to no precedent on point.  Mr O’Neill has referred me to “The Oranie” [1966]: 1:  Lloyd’s Reports 477 where a court refused to prohibit a litigant before it from taking any step in an arbitration pending the final determination of two other actions in which it was involved which had been commenced in France.  In particular I was referred to the speech of Lord Justice Salmon where he said that whilst there was in principle jurisdiction in the court to stay arbitration proceedings “it seems to me that before the courts will exercise this jurisdiction there must at any rate be some prima facie evidence before the court that the agreements are impeachable”.  There was delay in that case and there was no such prima facie evidence and the court refused to intervene.  Mr O’Neill submits that there is delay in this case, there is no attack on the basis upon which the first defendant is to proceed to conduct the arbitration and the court should, likewise, refuse to intervene.
	I do not think the case is on all fours with the present situation.  There is indeed delay in this case and I will deal with that separately.  However I cannot accept that in the event that the assertions made on the pleadings prove to be correct, that this does not constitute an attack on the basis upon which the arbitration would proceed.  It seems to me at the very least arguable that in the event that it is established that the second defendant procured by bribery the zoning which now affects its lands being taken by the plaintiff then this arbitration as currently set up should not proceed. 
	In the absence of direct precedent on all fours with the present situation, I have come to the view that the court should take into account the fact that the Tribunal has itself decided to investigate the allegation.  This is not to say, of course, that these allegations are in the same status as if they were allegations supported by affidavit evidence in an interlocutory injunction before the court.  Indeed I have some doubt as to what weight to give the decision by the Tribunal to investigate them:  it seems, however, that on balance I should acknowledge and take into account the fact that the Tribunal has made a formal indication that it will investigate these allegations.  I hold, therefore, that the plaintiff has made out a good cause of action.  
Balance of Convenience
	I have taken into account all the submissions made by both sides and it seems to me that the balance of convenience weighs heavily in favour of granting the injunction sought, subject to one qualification.  The plaintiff acknowledges that the second defendant is entitled to some level of compensation based, as I understand it, on the zoning (or use) of the second defendant’s lands prior to the change of zoning which is impugned.  At the hearing before me Counsel for the first defendant indicated his client’s readiness to make an interim award on some such basis.  It seems to me that arrangements should be made for an assessment of such value and payment thereof notwithstanding any stay on the arbitration.
Delay
	Has there been such delay as would prohibit a court from granting an order which it would otherwise grant?  I have set out the delay in question.  No doubt it came as a bombshell to the second defendant to hear on the 7th January that an application was being made on the 11th for an interim injunction.  The period of delay included some time, I am prepared to infer, which elapsed due to the illness of Counsel and also some other time during the Christmas holiday.  In my opinion the delay was not such as to prohibit the making of an order which the court would otherwise make.
Public Interest
	I emphasise that in reaching my conclusion in relation to delay and also my conclusion that the plaintiff has made out a good cause of action I have been influenced by the public interest considerations which apply to this case.  The Oireachtas has identified the general issue of bribery of which the allegation made against the second defendant comprises part as a matter of urgent public importance.  It appointed a tribunal which itself has indicated that it intends to investigate the specific allegations against the second defendant.  There is clearly grave public concern that these matters be inquired into and determined as soon as reasonably possible.  It is also, in my opinion, of importance to the public that a reasonable opportunity be afforded to the plaintiff to procure evidence, if such there be, in support of its allegations made in these proceedings against the second defendant.
	Finally I wish to emphasise that this decision of mine in no way implies an acceptance of or any kind of judgment as to the weight to be attached to the allegations made to the Tribunal against the second defendant.  I have taken account, in reaching my decision, not such allegations or any evidence in support of them (if such there be: I do not know), but rather the determination of the Tribunal itself to inquire into them.
	Accordingly there will be an order as sought by the plaintiff subject to a proviso that in the absence of agreement between the plaintiff and the second defendant arrangements should be made for the assessment of the compensation admittedly due by the plaintiff to the second defendant.  I am facilitated in making this proviso by the indication of Counsel for the first defendant that he would be prepared to make an interim reward in that regard.