AHP Manufacturing BV t/a Wyeth Medica Ireland v DPP and Others

• Jurisdiction: Ireland
• Court: High Court
• Judge: Mr. Justice Kevin O'Higgins
• Judgment Date: 08 May 2008
• Neutral Citation: [2008] IEHC 144
• Date: 08 May 2008
• Docket Number: No. 50 J.R./2007

[2008] IEHC 144

THE HIGH COURT

No. 50 J.R./2007

AHP Manufacturing B.V. (t/a Wyeth Medica Ireland) v DPP & Ors

JUDICIAL REVIEW

BETWEEN

AHP MANUFACTURING B.V. TRADING AS WYETH MEDICA IRELAND

APPLICANT

AND

THE DIRECTOR OF PUBLIC PROSECUTIONS THE ENVIRONMENTAL PROTECTION AGENCY, IRELAND AND THE ATTORNEY GENERAL

RESPONDENTS

ENVIRONMENTAL PROTECTION AGENCY ACT 1992 S87(10)

PROTECTION OF THE ENVIRONMENT ACT 2003 S15

BENNION STATUTORY INTERPRETATION: A CODE 4ED 2002 729 S281

MULLINS v HARNETT 1998 4 IR 426 1998 2 ILRM 304

ENVIRONMENTAL PROTECTION AGENCY ACT 1992 S83

O'CONNELL v ENVIRONMENTAL PROTECTION AGANCY & DUNGARVAN ENERGY LTD 2001 4 IR 494 2002 1 ILRM 1

KSK ENTERPRISES LTD v BORD PLEANALA 1994 2 IR 128 1994 2 ILRM 1

RSC O.84 r21

RSC O.84

BLANCHFIELD v HARNETT 2002 3 IR 207 2002 2 ILRM 435

WANDSWORTH LONDON BOROUGH COUNCIL v WINDER 1985 AC 461

BANKERS BOOKS EVIDENCE ACT 1879

ENVIRONMENTAL PROTECTION AGENCY ACT 1992 S80(1)

ENVIRONMENTAL PROTECTION AGENCY ACT 1992 S83(1)

ENVIRONMENTAL PROTECTION AGENCY ACT 1992 S84(1)

ENVIRONMENTAL PROTECTION AGENCY ACT 1992 S84(2)

CONSTITUTION ART 15.2.1

ENVIRONMENTAL PROTECTION AGENCY ACT 1992 S85(8)

WHITE v DUBLIN CITY COUNCIL 2004 1 IR 545 2004 2 ILRM 509

CAHILL v SUTTON 1980 IR 269

STATUTE OF LIMITATIONS 1957 S11(2)(b)

WHITE v DUBLIN CITY COUNCIL 2004 1 IR 545 2004 2 ILRM 509

NI EILI v ENVIRONMENTAL PROTECTION AGENCY 1997 2 ILRM 458

Mr. Justice Kevin O'Higgins

1 The applicant has operated a pharmaceutical production facility in County Kildare pursuant to Integrated Pollution Control licences ("IPC licences") granted by the Environment Protection Agency ("E.P.A.") since January, 1997. The Agency first granted a licence to the applicant on the 14^th January, 1997 and issued a revised licence registered number 309 on 27^th March, 1998. The Agency then issued further revised licence registered number 581 on the 15^th February, 2002. Conditions 7.1 and 7.2 of the IPC licences registered numbers 309 and 581 (the impugned conditions) essentially provided that waste sent off the site for recovery could only be conveyed by a waste contractor approved by the E.P.A.

2 On the 28^th November, 2006, the applicant was served with eighteen summonses charging a series of alleged offences in relation to the disposal of waste on various dates between the 18^th September, 2000 and 31^st May, 2001. Five of the eighteen summonses alleged offences breaching the terms of the impugned conditions. In the case of each of the five summonses the same breach is alleged to have occurred on different dates.

3 On the 22^nd January, 2007, the applicant was granted leave to apply for judicial review seeking a number of reliefs against the respondents:-

4 (a) In respect of the Director of Public Prosecutions ("D.P.P."), the applicant was granted leave to seek an order of prohibition or an injunction to restrain the prosecution of the five charges in the summonses alleging breach of the conditions in the licences granted to the applicant.

5 (b) In respect of the Environmental Protection Agency ("E.P.A."), the applicant was granted leave to challenge the validity of the certain conditions in the licences granted to the applicant by the E.P.A.

6 (c) In respect of the third named respondent, the State, the applicant was given leave to seek a declaration to the effect that the statutory provisions under which the licences were granted and the impugned conditions attached thereto were unconstitutional.

7 On the 13^th April, 2007, the E.P.A. issued a motion to have the grant of leave set aside. On the 19^th April, 2007, the Attorney General issued a motion to have the grant of leave set aside and on the 15^th May, 2007, the Director of Public Prosecutions brought a motion inter alia to have the leave set aside as being out of time. There was a discrete issue between the Director of Public Prosecutions and the application but that issue is now resolved and does not require adjudication by the Court. On the 18^th May, 2007, the applicant brought a motion to amend the grounds to include an argument that the statutory time limit provided for in s. 87(10) of the Environmental Protection Agency Act, 1992 (as inserted by s. 15 of the Protection of the Environment Act, 2003) is unconstitutional. The Court is concerned with these four motions.

8 The relief sought against the E.P.A. is a declaration that the conditions in respect of the alleged breach to which the summonses relate areultra vires the (E.P.A.) and unlawful, void and of no effect. The applicant seeks an order of certiorari quashing such conditions.

9 The applicant seeks a declaration that sections of the Environmental Protection Agency Act,1992 are repugnant to Article 15.2.1 of the Constitution in that the said provisions allow an impermissible delegation of the sole and exclusive law making power of the Oireachtas to the authority of the E.P.A. This argument is primarily a matter to be dealt with by the State.

10 As has been already noted, the applicant also brings a motion seeking to amend its statement of ground so as to challenge the constitutionality of the time limits contained in the Environmental Protection Agency Act,1992 (as amended).

11 The applicant seeks an order of prohibition or an injunction restraining the Director of Public Prosecutions from further proceeding with his prosecution on five of the summonses, the subject matter of these proceedings. No specific argument is directed specifically at the Director of Public Prosecutions separately. However a successful application for relief against the other respondents would have the consequence that the applicant would also succeed in his application against the Director of Public Prosecutions.

12 This hearing is not concerned with the substantive issues but only with the motions brought by the various parties. The Environmental Protection Agency, Ireland and the Attorney General, and the Director of Public Prosecutions all maintain that the applicant's application should be dismissed at this stage without going to a full hearing for the reasons argued in Court, and the applicant seeks to amend his grounds to include a new constitutional claim.

13 The issues for the decision of the Court are as follows:

14 (1) Is the applicant precluded from obtaining relief because of the provisions of s. 87(10) of the Act of 1992 (as amended)?

15 (2) Is the applicant precluded from obtaining the relief sought by virtue of the delay, either pursuant to the inherent jurisdiction of the Court or the provisions of Order 84 of the Rules of the Superior Courts, 1986?

16 (3) Has the applicant the requisitelocus standi to pursue the constitutional claim in respect of the contention that the conditions imposed on the applicant by the Environmental Protection Agency were ultra vires the Agency?

17 (4) Is the applicant precluded, by reason of lack oflocus standi, from seeking to pursue a new constitutional argument that the time limits imposed in the Act of 1992 (as amended) are unconstitutional?

18 Section 87(10) of the Environmental Protection Agency Act, 1992 (as amended) is clear. It provides as follows:-

"A person shall not by any application for judicial review or in any other legal proceedings whatsoever question the validity of a decision of the Agency to grant or refuse a licence or revised licence (including a decision of it to grant or not to grant such a licence on foot of a review conducted by it of its own volition) unless the proceedings are instituted within the period of 8 weeks beginning on the date on which the licence or revised licence is granted or the date on which the decision to refuse or not to grant the licence or revised licence is made."

19 The applicant contends that the above provisions do not apply in the present case and asserts that it is not challenging the grant of a licence but only the conditions attached to such a licence. The applicant argues that, because it faces the possibility of a penal sanction in the present case, s. 87(10) of the Act must be strictly construed in its favour. It contends that because s 87(10) refers to a licence and not to the conditions attached thereto, the provisions of s. 87(10) are not applicable to it.

20 I was referred to the fourth edition of Bennion,Statutory Interpretation A Code, 4^th Ed., (Butterworths, 2002) at p. 729 under section 281, where the following passage appears:-

"One aspect of the principle against doubtful penalisation is that by the exercise of state power the rights of a person in relation to the law and legal proceedings should not be removed or impaired, except under clear authority of law."

21 I was also referred to a decision of my own in the case ofMullins v. Hartnett [1998] 4 I.R. 424 and where under the heading "The Principle Against Doubtful Penalisation", the Court said (at p. 434):-

"According to this principle nobody suffers a detriment by application of a doubtful law"

22 The Court went on to quote a passage from Bennion,Statutory Interpretation, 2^nd Ed., (Butterworths, 1992) at p. 572 as follows (on p. 434):-

"Whenever it can be argued that an enactment has a meaning requiring infliction of a detriment of any kind, the principle against doubtful penalisation comes into play. If the detriment is minor, the principle will carry little weight. If the detriment is severe, the principle will be correspondingly powerful. As Staughton L.J. said in relation to penalisation through retro-respectivity it is a matter of degree - the greater the unfairness, the more it is to be expected that Parliament will make it clear if that is intended. However it operates, the principle requires that persons should not be subjected by law to any sort of detriment unless this is imposed by clear words".

23 In relying on the above...