Aquatechnologie Ltd v National Standards Authority of Ireland and Others

JurisdictionIreland
CourtSupreme Court
JudgeMurray J.
Judgment Date10 July 2000
Neutral Citation[2000] IESC 64
Docket Number84 & 115/99
Date10 July 2000

[2000] IESC 64

THE SUPREME COURT

Keane C.J .

Murphy J .

Murray J .

84 & 115/99
AQUATECHNOLOGIE LTD v. NATIONAL STANDARDS AUTHORITY OF IRELAND(NSAI) & ORS
AQUATECHNOLOGIE LIMITED
Applicant/Appellant

AND

NATIONAL STANDARDS AUTHORITY OF IRELAND, THE MINISTER FOR THE ENVIRONMENT, IRELAND AND THE ATTORNEY GENERAL
Respondents

Citations:

NATIONAL STANDARDS AUTHORITY OF IRELAND ACT 1996 S7

BUILDING CONTROL REGS 1991 SI 305/1991

TREATY OF ROME ART 28

TREATY OF ROME ART 10

TREATY OF ROME ART 12

STERLING WINTHROP GROUP LTD V FABENFABRIKEN BAYER 1967 IR 97

HOUSING (MISCELLANEOUS PROVISIONS) ACT 1979 S4

RSC O.84 r23(2)

Synopsis:

Practice and Procedure

Practice and procedure; discovery; appellant seeking judicial review of decision of first-named respondent to deny the appellants an agreement certificate in respect of their product (plastic piping); appeal against two orders of High Court refusing appellant's application for discovery of certain documents by first-named respondent and refusing appellant's application to amend statement of grounds; appellant sought discovery of all documentation in the possession of first-named respondent concerning applications for certification by third parties in respect of polythene piping; first-named respondent had already made discovery to the appellant of all documentation concerning their application for a certificate; whether documents sought were relevant to the issue of legitimate expectation; whether discovery could be sought in order to establish discrimination when this issue did not from part of the statement of grounds; whether documents were relevant to alleged breach of Article 30, E.C. Treaty; whether suggested basis for granting of discovery was speculative; whether documents sought in discovery were directly or indirectly relevant to any of issues between the parties; whether appellant could amend statement of grounds with view to adding various reliefs on ground that at no time was it told that its product was not a “proper material” for purpose of building regulations; whether appellant's delay in making an application to amend is excusable.

Held: Order refusing discovery upheld; application for leave to amend statement of grounds granted.

Aquatechnologie Limited v. National Standards Authority of Ireland - Supreme Court: Keane C.J., Murphy J., Murray J. - 10/07/2000

The applicant had issued judicial review proceedings against the respondents. The proceedings related to the refusal by the first-named respondent (“the N.S.A.I.”) to certify a product, a form of piping, which was imported by the applicant. The applicant argued, inter alia, that the certificate in question should have issued on the grounds of legitimate expectation and also claimed that the product complied with standards recognised in other countries of the European Union. The applicant had sought discovery of certain documents and in particular sought documents relating to other applications made by third parties which had been certified in order to demonstrate discrimination. The applicant had also sought to amend its statement of grounds. The first of these applications was refused by Geoghegan J in the High Court on 2 March 1999 and McCracken J refused leave to amend pleadings by order dated 23 April 1999. The applicant appealed against both of these orders. Murray J, delivering judgment, held that the documents sought by the applicant had no relevance to the issues as set out in the statement of grounds. The order refusing discovery would be upheld. The application to amend pleadings relating to the decision by the second-named respondent not to designate the product as a “proper material” should be allowed and the appeal of the applicant in this regard would be allowed.

Murray J.
[NEM DISS]
1

These proceedings are judicial review proceedings initiated by the Applicant/Appellant (hereinafter the Appellant) against the Respondents pursuant to an order of Geoghegan J. of the 29th day of June, 1998 granting leave to the Appellant to apply for such judicial review.

2

The proceedings have given rise to two appeals before this Court, the first from an order of the High Court of Geoghegan J. of March 2nd 1999 refusing the Appellant's application for discovery of certain documents by the first-named Respondent and the second from an order of the High Court of McCracken J. of 23rd April, 1999 refusing an application on behalf of the Appellant to amend the Statement of Grounds on which the application for judicial review is based.

3

I will first of all deal with the Appellant's appeal against the Order of the High Court refusing its application for discovery. By way of notice of motion dated 15th December, 1998 the Appellant sought discovery of certain documents as against the first-named Respondent only (N.S.A.I.) and they are the only Respondent concerned with this particular appeal. The Appellant appeals from the Order of Geoghegan J. who by Order dated the 2nd day of March, 1999 refused to order the discovery of the documents sought against the first-named Respondent.

4

Before detailing the documents sought in discovery it is necessary to set out some of the background facts and the issues in dispute between the parties.

5

The Appellant company is an importer of thermoplastic piping known as Euroflex. It has been importing this product into Ireland since June, 1995. Euroflex piping is, what has been referred to in the proceedings as, a"non-cross-linked" thermoplastic pipe. It is a building material intended for use for carrying hot and cold water for under floor heating and for high temperature radiator heating. What might be described as a more traditional form of plastic piping characterised as "cross-linked"piping is another form of thermoplastic pipe also used as a building material for similar purposes. It is common case that cross-linking has been a relatively well established method for enhancing or strengthening plastic pipes to enable them to cope with high temperatures. The Appellant contends that Euroflex thermoplastic piping, while non-cross-linked, has been enhanced in accordance with more recent technological progress which also enables it to deal with high temperatures and accordingly be used as a building material for the aforesaid purposes. This enhancement is said to be the result of the modified molecular structure of the plastic. The Euroflex piping is made from a resin manufactured by Dow Chemicals and the pipes themselves are manufactured by H.P.G. Heizorohr Produktions G.m.b.H.

6

Piping made from plastic materials would generally be unsuitable for use in situations of high temperature or high pressure. Hence the need for enhancement or strengthening of such piping in order to ensure that it meets certain standards of performance or"service requirements" concerning its durability when used for such purposes. Cross-linking is one method of enhancing plastic piping. It is not in contention that the plastic piping which is on the Irish market and which has to-date been certified by the first-named Respondents as complying with the appropriate service requirement standard has in every case been enhanced by the cross-link process. The Appellants, whose piping is non-cross-linked but enhanced by a different process, as indicated above, decided to apply for certification of their product as this was deemed necessary for full access to the Irish market. Neither is it in contention that the Appellant's product was the first non-cross-linked thermoplastic piping for which certification was sought from the relevant Irish authorities.

7

Accordingly, in or about March/April, 1996 the Appellants decided to apply for a certificate of agreement from the Irish Agrement Board (hereafter I.A.B.)

8

The I.A.B is a consultative committee which functions under the aegis of the first-named Respondents, the N.S.A.I. The N.S.A.I. was established as an independent statutory body in 1996 pursuant to the National Standards Authority of Ireland Act,1996. Its functions are set out in s. 7 of the 1996 Act. One of its functions is "to certify any commodity, process or practice as conforming with an Irish standard specification, or with standard of another Member State of the European Union or with any other recognised public specification." The N.S.A.I., by virtue of the 1996 Act took over the functions previously carried out by the Institute for Industrial Research and Standards which had originally established the I.A.B. The I.A.B. issues Agrément Certificates for building and civil engineering products. Agrément certification is a favourable technical assessment of the fitness of such products for building and civil engineering purposes. The certificate is intended to provide an independent opinion on the performance in use of, inter alia, a building product and will clarify compliance with the technical requirements of any applicable controlling regulations. The agrément certificate has particular importance of the purposes of the Building Regulations, 1991, (S.I. No. 206 of 1991), the first schedule of which provides, inter-alia, that products which have an I.A.B. certificate are acceptable for use in building.

9

The presentation of an application for an Agrément Certificate by the Appellant was followed by a fairly extended process in the course of which the Appellant furnished reports and a range of technical material supporting its case that it should be granted such a certificate. What the I.A.B. sought was compliance by the Appellant's product with certain performance criteria. Eventually in March, 1997 a draft certificate was furnished by I.A.B. to the Appellants but this draft certificate was issued subject to N.S.A.I. standard conditions which makes a final certificate conditional on no new information becoming available which in its opinion would preclude the granting of the certificate. In the...

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