The case arises out of a dispute between a wealthy accountant and landowner, Joe Walker, and locals who insist that a route across Mr Walker’s land in the Glencree Valley is an old roadway and as such, a public right of way.
Mr Walker took a High Court action against two members of the local Enniskerry Walking Association who went on a club walk along the disputed route.
The case was before the courts repeatedly for two years before it received an 11-day hearing late in 2011. In February 2002, the High Court granted Mr Walker an injunction preventing the two defendants from entering his land but refused to grant any wider order barring the public.
During the hearing, the two defendants, school teacher Niall Lenoach and pensioner Noel Barry, produced more than a dozen maps, some of them 250 years old, which appeared to show the route as an old road. Nevertheless, Justice John McMenamin ruled that under existing Irish law they had not shown that there was a public right-of-way because they did not have evidence that any landowner had ever dedicated the route to public use.
A number of thorny questions arise from this judgment, not least the question of costs.
Counsel for Mr Walker has said that the ruling by the judge that there was not a public right of way means he won the case and should be entitled to costs.
Counsel for the two defendants claim they were acting in the public interest in trying to protect access which had long been enjoyed by the public. They argue that making them pay even a portion of the costs would ruin them.
Campaigners for improved public access have long pointed to the ruling as a perfect example of why the law on access in Ireland must change. Almost all Irish access law is based on 18th and 19th Century English law which has never been updated.
Campaigners like Keep Ireland Open point out that the level of evidence showing the route as an old roadway would have been accepted without question as proving the case there being a public right of way in almost any other European jurisdiction – including England, which has completely reformed the property laws on which Irish law is still based.
The appeal of the case, Walker vs Lenoach and Barry, will be the subject of a one-day hearing at the Four Courts on Tuesday Jan 16th in the Court of Appeal at 10:30. We ask all our supporters to be present if possible.