BROADCASTER PAT Kenny and his neighbour have agreed to allow the High Court dispute over lands near their homes in Dalkey to go to mediation on Monday following the trial judge's appeal yesterday to them to "think long and hard" before things are said in evidence which cannot be taken back.
Ms Justice Maureen Clark, who revealed she had visited the disputed site at Gorse Hill on Thursday, urged Mr Kenny and his wife Kathy and their neighbours Gerard and Maeve Charlton not to put the court in a position where it had to choose whose evidence it preferred.
Urging them to think long and hard before things are said that cannot be taken back, she said that while they both lived in "a very idyllic setting", it would not be idyllic when the case is over. It was "not too late" to consider mediation, she urged.
Both sides then agreed the case could go to mediation which will take place next Monday. However, if the mediation is not successful, it will be back before the High Court on Tuesday.
The development came in the third day of the action by retired solicitor Mr Charlton and his wife who claim they are the legal owners of the 0.2 acre strip of land known as Gorse Hill.
After Eoghan Fitzsimons SC, for the Charltons, had concluded his opening and just as the case was about to go into evidence, Ms Justice Clark said she wanted to say something "off my own bat" to the parties before the first of a number of witnesses was due to be called.
If this was a commercial court case or a family law case, a judge would be obliged to inquire whether the parties had tried mediation, she said. She warned that what was said in evidence "could not be unsaid".
Ms Justice Clark said: "You will continue to be neighbours and, at the end, you cannot both win and you will continue to live there."
The judge revealed that she had carried out an inspection of the site on Thursday following an agreement between the parties. From that visit, she could see both parties have been "very fortunate in life and have achieved great success" in their careers.
"They are very well thought of in their respective professions throughout the length and breadth of the country, " she said. "I urge you to think long and hard before things are said that cannot be taken back.
"You both live in attractive houses in a very idyllic setting and you will both go back to live there but it will not be idyllic when the case is over.
"Please think carefully before evidence is given and I am put in a position to say I prefer one side's evidence to the other. It is not too late, that is all I am going to say but I would urge you to consider."
The hearing was then adjourned to allow both sides discuss what the judge had said and an hour and 20 minutes later, the court was told by Mr Fitzsimons the parties had agreed to the mediation suggestion.
Earlier, continuing his opening submission, Mr Fitzsimons said the question of who gave permission for access to the land was an issue as recently as the late 1990s. Mr Charlton claimed only he could give such permission as shown in 1998 when another neighbouring house called Roan Carrig was being sold.
Mr Charlton would say he had asked the then owners of Roan Carrig to make it clear to the buyer of their house that it did not include access to Gorse Hill.
Counsel said that, in correspondence between the two sides in the lead up to the case, the Charltons had said their children, grandchildren, and the children of the former owners of Roan Carrig played on Gorse Hill.
A list of 57 activities carried out on the lands has been supplied by the Kennys to the Charltons. These including pruning of trees, planting, installation of bird boxes, cutting back brambles, repairing fencing and the installation of decorative lights and decorative geese statues on the property.
In their claim, the Charltons said they have owned the land since buying their own home, Maple Tree House, in 1971.
Both sides are also seeking damages in the action.
In their defence and counterclaim, the Kennys say they have acquired the Gorse Hill land by virtue of adverse possession or squatters' rights since 1991 and have a legal claim restraining any development of the land. They say they have used the land as a nature reserve for foxes and badgers and carried out numerous gardening and improvement works on the land over the years.