Atlantic Shellfish Ltd & Hugh-Jones v Cork County Council and Others

• Jurisdiction: Ireland
• Judge: Miss Justice Laffoy
• Judgment Date: 20 May 2010
• Neutral Citation: [2010] IEHC 294
• Court: High Court
• Date: 20 May 2010

Atlantic Shellfish Ltd & Hugh-Jones v Cork County Council & Ors

BETWEEN

ATLANTIC SHELLFISH LIMITED AND DAVID HUGH-JONES

PLAINTIFFS

AND

THE COUNTY COUNCIL OF THE COUNTY OF CORK, THE MINISTER FOR THE MARINE AND NATURAL RESOURCES, IRELAND AND THE ATTORNEY GENERAL

DEFENDANTS

[2010] IEHC 294

[No. 15389P/2001]

THE HIGH COURT

PRACTICE AND PROCEDURE

Preliminary issue

Application to have issue tried as preliminary issue - Circumstances where preliminary trial appropriate - Approach of Court in determining whether preliminary trial appropriate - Effect of delay on application - Whether preliminary trial appropriate - McCabe v Ireland [1999] 4 IR 151; Murphy v Roche [1987] 1 IR 106; Primor Plc v Stokes Kennedy Crowley [1996] 2 IR 459 applied - PJ Carroll & Co Ltd v Minister for Health (No 2) [2005] IEHC 267, [2005] 3 IR 457; Kalix Fund Ltd & Anor v HSBC Institutional Trust Services (Ireland) Ltd [2009] IEHC 457, (Unrep, HC, Clarke J, 16/10/2009) considered - Cork Plastics Manufacturing & Ors v Ineos Compound UK Ltd [2008] IEHC 93, (Unrep, HC, Clarke J, 7/3/2008); McCann v Desmond [2010] IEHC 164 (Unrep, HC, Charleton J, 11/5/2010) distinguished - Rules of the Superior Courts 1986 (SI 15/1986), O 25, 34, 63A - Foreshore Act 1933 (No 12) - Application dismissed (2001/15389P - Laffoy J - 20/5/2010) [2010] IEHC 294

Atlantic Shellfish Ltd v Cork County Council

1 Judgment of Miss Justice Laffoy delivered on the 20th day of May, 2010.

1. Proceedings and applications in outline

2 2 1.1 As pleaded in the statement of claim, the plaintiffs brought these proceedings as the owners and operators of an oyster fishery in Cork Harbour near Rathcoursey, Midleton, County Cork. Since the proceedings were initiated, the plaintiffs have ceased to operate the oyster fishery. That, apparently, occurred in 2002. The first defendant (Cork County Council) is sued as the local and sanitary authority for County Cork with responsibility for the construction, operation and maintenance of a sewage scheme and treatment plant at Midleton, County Cork. In broad terms, the second defendant (the Minister) is a defendant in the proceedings as the grantor of foreshore licences under the Foreshore Act 1933 on foot of which Cork County Council operated the Midleton Sewage Scheme. The third and fourth defendants are sued on the basis that the third defendant is vicariously liable for the wrongful acts and omissions of the Minister. The second, third and fourth defendants will be referred to collectively as "the State parties".

3 3 1.2 While, in the statement of claim, which was delivered before the plaintiffs ceased to operate the oyster fishery, the plaintiffs sought various declaratory and injunctive reliefs, as I understand it, the current position is that, the oyster fishery having ceased to operate, their claim is primarily, if not exclusively, a claim in damages for the losses which the plaintiffs have sustained in relation to the operation of the oyster fishery and in consequence of its closure by reason of the alleged conduct of Cork County Council in operating the Midleton Sewage Scheme and by the State parties in facilitating such operation. In broad terms, the plaintiffs allege that Cork County Council discharged, and that the State parties facilitated the discharge, into Cork Harbour near Rathcoursey of untreated sewage effluent which contaminated the oyster fishery and caused outbreaks of food poisoning as a result of consumption of oysters harvested from the oyster fishery, which resulted in damage to the plaintiffs' business and goodwill and ultimately to the closure of the oyster fishery.

4 4 1.3 The aspect of the claim in these proceedings which gives rise to the applications with which the Court is concerned in this judgment is that it encapsulates the revival by the plaintiffs of a claim for damage to the oyster fishery and to their business in the period from December 1988 which was litigated in earlier proceedings (Record No. 1992/7445P) brought in this Court by the plaintiffs against Cork County Council and the Minister (the 1992 proceedings). The 1992 proceedings came on for hearing on 26 ^th November, 1996. They were compromised on 27 ^th November, 1996. On that day the Court made an order by consent that a form of consent (the 1996 consent) which had been signed on behalf of the parties be received and filed, and also dealing with the plaintiffs' costs against the defendants and striking out cross-notices for indemnity or contribution between the defendants inter se. The 1992 proceedings were then adjourned for mention and eventually they were struck out by consent with liberty to re-enter. The nub of the defence of Cork County Council and the State parties to the plaintiffs' claim for damages in respect of the period from 1988 to 1996 is that the plaintiffs are bound by the 1996 consent and cannot go behind it. That is rejected by the plaintiffs. Arising from that, one issue which will require to be determined in these complex proceedings is which side is correct and whether the plaintiffs are or are not precluded from claiming damages and other reliefs for the period from 1988 to 1996.

5 5 1.4 This judgment deals with two applications, one brought by Cork County Council and the other by the State parties, which seek, in broad terms, to have that issue determined either as a preliminary issue or as a separate module in the proceedings.

6 6 1.5 The Court was informed that the plaintiffs have recently re-entered the 1992 proceedings and that the State parties have threatened to bring a motion striking out the re-entry. Counsel for the plaintiffs confirmed that that step was taken on a "belt and braces" basis. Be that as it may, the status of the re-entry is a separate issue and has no bearing on the matters to be determined by the Court in this judgment

2. Pleading of pre-1996 consent claim in these proceedings

7 2 2.1 The Court has been furnished with copies of the pleadings in the 1992 proceedings. However, it seems to me that the issues now before the Court fall to be determined by reference to what is pleaded in these proceedings.

8 3 2.2 In their statement of claim, which was delivered on 20 ^th August, 2002, having narrated the grant by the predecessor of the Minister to Cork County Council of a foreshore licence on 5 ^th March, 1986, and the discharge by Cork County Council of raw untreated sewage into the sea at Rathcoursey Point at some time in or prior to December 1988, purportedly in pursuance of the Midleton Sewage Scheme, which was officially opened on 16 ^th December, 1988 and/or the 1986 foreshore licence, and the resulting contamination of the plaintiffs' oyster fishery and outbreaks of food poisoning and the commencement of the 1992 proceedings, the following matters are pleaded in relation to the 1992 proceedings:

9 (a) That it was claimed therein that the 1986 foreshore licence was ultra vices, null and void and of no force or effect on various grounds, that Cork County Council ought not to have operated the Midleton Sewage Scheme without providing for a treatment plant to treat the sewage prior to its discharge into the sea, and that the continued operation of the Midleton Sewage Scheme and consequent deterioration in the water quality and contamination of the plaintiffs' oyster fishery amounted to and was caused by negligence, breach of duty, breach of statutory duty and nuisance on the part of Cork County Council and the Minster, as a consequence of which the plaintiffs suffered financial loss and damage and damage to their business and reputation.

10 (b) That the 1992 proceedings were settled between the plaintiffs and Cork County Council and the Minister on 26 ^th November, 1996 on terms set out in the 1996 consent, outlining what were described as "express conditions or alternatively, fundamental terms" thereof. Reference is made to clauses 1, 2 and 3 under which Cork County Council and the Minister agreed to pay damages aggregating IR£500,000 to the plaintiffs as damages for loss of goodwill and to pay the costs of the proceedings. Reference is also made to:

11 (i) clause 4 under which Cork County Council undertook that it should, on or before 30 ^th June, 2000, bring into operation a secondary waste water treatment plant incorporating ultra-violet disinfection facilities for the town of Midleton,

12 (ii) clause 5 by virtue of which Cork County Council was entitled, pending the bringing into operation of that plant, to continue to operate the sewage outfall then situate at Rathcoursey Point subject to the provisions of clause 6, and

13 (iii) clause 6, which provided that the plaintiffs would have no right of action in respect of events thereafter occurring arising from the operation by Cork County Council of the outfall save insofar as the operation of the outfall should be proved to have caused a specified level of deterioration in the fish quality of the plaintiffs' oysters and illness in one or more human beings resulting from that deterioration.

14 4 2.3 The basis on which the plaintiffs plead their entitlement to go behind the 1996 consent in these proceedings is as follows:

15 (a) It is pleaded that the undertaking given by Cork County Council in clause 4 of the 1996 consent was a condition, or, alternatively, a fundamental term of the 1996 consent and went to the root of the agreement between the parties under which the 1992 proceedings were settled and without the undertaking the plaintiffs would not have agreed to settle or executed the 1996 consent. Alternatively, Cork County Council and the Minister knew or ought reasonably to have known that the plaintiffs would rely on the undertaking, that the plaintiffs did so rely, and were induced by the undertaking in agreeing to settle the 1992 proceedings.

16 (b) It is...