Socialite and solicitor bring action over gate

Gerard Fitzgibbon


Gerard Fitzgibbon

Boutique owner Kay Mulcair and solicitor Michael ODonnell have each brought legal action against Jeremiah O'Flynn, after he erected a locked gate which blocked rear access to their businesses on Main Street, Rathkeale
A LEGAL battle between a county Limerick solicitor, a well-known boutique owner and a county Limerick resident over access to a disputed laneway could be set to go all the way to the High Court.

A LEGAL battle between a county Limerick solicitor, a well-known boutique owner and a county Limerick resident over access to a disputed laneway could be set to go all the way to the High Court.

Kay Mulcair, owner of The K Boutique, and solicitor Michael O’Donnell, whose premises are both situated on Main Street, Rathkeale, have sued a nearby property owner, Jeremiah Flynn, of Pound Lane, Rathkeale, after he prevented them from using a small path which provides rear access to their businesses.

Both plaintiffs claim that the small path just off Pound Lane has a historical right-of-way for the owners of the buildings that they purchased in 2001. However in 2012 Mr Flynn became the freehold owner of a property at the top of the lane, including a gate which provides access to the path, and he subsequently changed the locks preventing Mr O’Donnell and Ms Mulcair from using it.

At Limerick Circuit Court this Monday Judge Gerald Keys ruled that a decades-old right-of-way for Mr O’Donnell and Ms Mulcair’s properties does exist, but was historically limited to pedestrians and “sporadic” vehicle use for deliveries and repairs.

Judge Keys has now asked all three parties to decide how they believe this limited right-of-way should be applied today, and said that he will make a final order on the matter in the autumn. If a workable solution is not agreed by all parties, the order is likely to be appealed to the High Court.

Ms Mulcair, the daughter-in-law of horse trainer Michael Hourigan, is well-known in local social circles and also owns the Isobel Boutique in Adare.

Legal action was initiated against Mr Flynn on July 11, 2012 after he began to lock the gate and prevent access to the laneway. In 2001 Mr O’Donnell and Ms Mulcair purchased their current premises on Main Street for £74,000 and £68,000 respectively, and as part of the sale they both received keys to open a gate the top of a path which runs along the rear of their properties and connects to Pound Lane.

However in January 2012 Mr Flynn purchased a neighbouring property on Main Street, which included the gate, and the plaintiffs allege that in June he then “wrongfully and unlawfully” changed the locks, preventing them from accessing the laneway.

In a circuit court hearing earlier this year David Kent BL, acting for Mr Flynn, argued that his client “disputes the nature of the right of way”, claiming that this extended to pedestrian access only, and not vehicles.

Reading from a written judgement in court this Monday, Judge Keys said that during the case hearing he was given “polar opposite” evidence by both parties about the laneway’s historical use, dating back as far as 1900.

The judge said that it had been established that “some vehicles passed through very often over the years”, from horses and carts to cars, but that this had been largely “for the delivery of fuel and other connected services”.

“There can be no doubt that there exists a right-of-way, but the extent of the right-of-way remains in dispute”, the judge added.

Since July last year, pending the outcome of the current legal proceedings, the court heard that Mr Flynn has been allowing the plaintiffs unlimited pedestrian access to the lane way, with vehicular access by arrangement.

The judge ruled a right-of-way “of a certain nature” exists in limited circumstances, but “not to the extent that it will be treated like a public roadway”. Judge Keys invited counsel for all sides to present him with guidelines for how this right-of-way should be applied today. He said this “unusual” step would not prevent either party from appealing any final order to the High Court, and stated that he wishes for all parties to be involved in drawing up an order so they cannot claim they do not understand it later, in the event of an appeal.

Emmett O’Brien BL, acting for Mr O’Donnell and Ms Mulcair, suggested that the lane should be used for “all purposes” connected to the two plaintiffs’ properties. However Judge Keys said that “all purposes, to me, is one step away from being a public roadway”, and that the right-of-way should only be used for purposes along the lines of deliveries, servicing and repairs, as it has been traditionally.

Mr Kent said that the lane had traditionally only ever seen “sporadic vehicle use” and that “the usage heretofore should be reflected in the order”. Judge Keys said that the “evidence is so much in dispute”, and that “it was very difficult to say one party’s evidence is correct, and the other isn’t”.

Mr O’Brien and Mr Kent agreed that they would each draw up orders that they felt best interpreted the right of way, and that the judge could decide which to sign off on. Judge Keys said that while this was an option, “I would still like to see the parties resolve it”.

The case was adjourned until September 24 for mention of whether an agreement has been reached.