Clare businessman John Flanagan has won an appeal case, clearing the way for him to continue a long legal battle with Clare County Council over car parking at the Cliffs of Moher.

His firm, Diamrem Ltd, is seeking damages of at least €15m for “misfeasance of public office”.

Diamrem has been given three weeks to proceed with the case. A spokesman for the firm said it was their intention to file a statement of claim within that period. Asked to comment, the local authority said the matter was “live before the courts” and “sub judice”.

Appeal court judge Ms Justice Butler said it was “imperative that the matter now be progressed with all reasonable expedition”.

Her judgment raised concerns over the council’s delay in releasing key financial documents under FoI rules, even after a ruling by the Office of the Information Commissioner (OIC) that it should.

The issue arose after Flanagan had sought documents relating to a council-controlled car park at the tourist hotspot, which the company insists should not be in operation.

“It is difficult to regard the respondent’s approach, certainly after the OIC had dealt with the first request, as anything other than deliberately obstructive of a party with whom it was engaged in litigation,” the judgment read.

Flanagan – who has built park and ride facilities at nearby Doolin and Liscannor that have never opened – claims the council-operated car park at the cliff visitor centre only ever had temporary permission – and is now unauthorised. Its continued operation had scuppered his own parking business plans that he had developed in the belief that the council car park was temporary. 

The case had been dismissed by the High Court in 2021 on grounds of “inordinate and inexcusable delay” of almost 22 months in Diamrem lodging a statement of claim.

Over the same timeframe as Flanagan’s litigation was proceeding, he was also pursing a series of four Freedom of Information requests.

“Broadly speaking, these requests were designed to elicit information in respect of the respondent’s operation of the visitor centre with a view to estimating the likely profit made by the respondent from the eastern car park and also the loss caused to the plaintiff,” wrote Justice Butler.

“The respondent refused all of these requests, both initially and on internal review, on the basis that the information was commercially sensitive and/or that its release would be prejudicial to the conduct or outcome of negotiations.”

In each case Flanagan had sought a further review from the OIC – and in each case that review was successful, with the respondent directed to grant access to the records.

“Somewhat surprisingly”, the judgment said, the council continued to refuse subsequent requests for the documents, instead launching an appeal to the High Court, which it later withdrew.

A spokesman for Diamrem confirmed that the documents were subsequently received and “do help with calculating potential losses”.

“It is likely the losses will be calculated to be in excess of the €15m – but at this stage, and until we get full discovery of all information held, we couldn’t comment any further,” said the spokesman.

In her ruling, Justice Butler outlined a key reason for delay had been that Diamrem was awaiting the outcome of a related case under Section 160 of the Planning and Development Act 2000, which it subsequently lost.

“The fact that the respondent is a public authority with access to resources, including legal resources, which are unavailable to the plaintiff provides some additional justification for the plaintiff’s attempt to deal with matters in stages,” wrote Justice Butler.

That case was dismissed on the basis that it had not been instituted within a seven-year limitation period. But Justice Butler wrote that it had not determined whether the continued existence of the council-controlled car park was unauthorised.

The issues at stake “were of some public importance, concerning as they did the appropriateness of a planning authority modifying a planning permission which had been granted by An Bord Pleanála to a company wholly owned by it, by way of Part 8 procedure.”

Part 8 is used by a local authority when applying to its own planning department for a development.

In a statement, the local authority said: “The issue of the Clare County Council determination by way of Part 8 procedure has already been previously determined by the court in the council’s favour in the injunction proceedings.”