Judge criticises sides involved in litigation over Dublin's Clonkeen College

Ruling on a preliminary issue in the case Ms Justice Carmel Stewart said she had "an extremely dim view" of the manner in which both sides have behaved in proceedings concerning Clonkeen College that began in March but currently stands adjourned.

Members of the board of management of Clonkeen College have sued the congregation of Christian Brothers, which set up the school, aimed at retaining the playing fields for as long as the school remains in operation.

The congregation opposes the action and denies the board member's claims the proposed sale will adversely affect the Deansgrange-based, 520-pupil school.

In her ruling, the Judge said she was allowing the school's Board of Management be joined to the case as a co-plaintiff as distinct from individual members. The application was made by the board members taking the case, and was opposed by the congregation.

The Judge said this was the second preliminary ruling on an issue raised during the hearing.

In a previous ruling, the judge refused to substitute the individual board members for the school's board of management.

The judge said another application arising out of the first ruling aimed at striking out the case remained outstanding.

The judge said "the value of a frank and honest approach to litigation cannot be underestimated," adding she was "at a loss" to understand why issues "evident for months" were "not progressed at an earlier juncture".

The proceedings "were clearly crying out for case management" and it "beggars belief the parties did not seek to have matters regularised earlier," the Judge said.

The judge said a hearing that commenced in mid-March has been "delayed for almost two months." In this case, the Judge said: "one side was as problematic as the other".

While accepting both sides think they are right and have the best interests of the school in mind both parties the Judge said had resorted to improper tactics and had "placed the court in a most invidious position".

The Judge said both sides had "recruited eminent and highly respected counsel to act as the unwitting maestros in this song and dance routine".

The Judge who adjourned the matter to a date in June urged the parties to "regularise their behaviour and progress this litigation in earnest".

The playing fields are held by trustees acting on behalf of the Congregation and are the subject of a five-year licence for sporting use. The licence was granted by the trustees to the Edmund Rice Schools Trust, which owns Clonkeen College.

The plaintiffs have challenged a €18m deal where the congregation is to sell seven acres of the playing fields to builder Mr Patrick Durkan Snr.

Under the deal, the school will receive €1.3m and will retain one area for use as a playing pitch, which the board says is unsuitable.

The plaintiffs claim they were kept in the dark over the deal. They claim the sale breaches a 2006 agreement with the congregation whose terms included that the playing fields would remain available for the school.

They seek declarations including that the schools are entitled to the continued use of the playing fields as long as the school remains in operation.

They also seek an order restraining the disposal of the playing fields and that the 2006 agreement be specifically performed.

The congregation denies entering into any agreement in 2006 as claimed. It says it has a binding contract to sell the lands and intends to make significant charitable donations from the proceeds of the sale.