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

• Jurisdiction: Ireland
• Judge: Mr. Justice Gilligan
• Judgment Date: 01 May 2015
• Neutral Citation: [2015] IEHC 570
• Court: High Court
• Date: 01 May 2015

[2015] IEHC 570

THE HIGH COURT

[No. 15389 P/2001]

Atlantic Shellfish Ltd & Hugh-Jones v Cork Co 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

Fisheries & Wildlife – Local Government – Grant of foreshore license – O. 56A, r. 2 of the Rules of the Superior Courts – Invitation to mediation – Declination of invitation to mediate – Alternative Dispute Resolution

Facts: The plaintiffs sought an order pursuant to o. 56A, r. 2 of the Rules of the Superior Courts for inviting the defendants to mediation in relation to the within proceedings. The second named plaintiff being the director and shareholder of the first named plaintiff who in turn owned oyster fisheries asserted that the grant of the second foreshore license by the second named defendant to the first named defendant for discharge of contaminated water into the inland beds where the plaintiffs' oysters were being bred led to closure of the flourishing business of the second named plaintiff and thus caused huge losses. The second named plaintiff contended that since the nature of the proceedings were expensive and complex, an order under o. 56A, r. 2 of the Rules of the Superior Courts would be desirable for the benefit of both parties.

Mr. Justice refused to grant an order under o. 56A, r. 2 of the Rules of the Superior Courts to the plaintiffs. The Court held that since the second named plaintiff had already been granted an order under o. 562A of the Rules of the Superior Courts for inviting the state defendants to mediate, the second named plaintiff now could not seek another order for the same. The Court observed that the process of mediation is a two-way process and a party could not be compelled to participate in the mediation process against its wishes. The Court held that it would not be appropriate to grant an order pursuant to o. 56A, r. 2 of the said Rules given the nature of the proceedings involving resolution of important public issues such as validity of grant of foreshore license and onus and quantum of liability. The Court found that the present application was vexatious and it was filed merely for the purpose of seeking costs in future owing to the refusal of the defendants to participate in the mediation process.

1 JUDGMENT of Mr. Justice Gilligan delivered on the 1st day of May, 2015

2 1. The plaintiffs bring this motion before the court seeking an order pursuant to O. 56A, r. 2 of the Rules of the Superior Courts inviting the defendants to mediation in relation to the within proceedings.

3 2. The relevant provisions of O. 56A of the Rules are as follows:-

4 2 "1. In this Order:

5 "an ADR process" means mediation, conciliation or another dispute resolution process approved by the Court, but does not include arbitration;

6 "party" includes the personal representative of a deceased party.

7 2 2.(1) The Court, on the application of any of the parties or of its own motion, may, when it considers it appropriate and having regard to all the circumstances of the case, order that proceedings or any issue therein be adjourned for such time as the Court considers just and convenient and-

8 (i) invite the parties to use an ADR process to settle or determine the proceedings or issue, or

9 (ii) where the parties consent, refer the proceedings or issue to such process, and may, for the purposes of such invitation or reference, invite the parties to attend such information session on the use of mediation, if any, as the Court may specify.

10 (2) Where the parties decide to use an ADR process, the Court may make an order extending the time for compliannce by any party with any provision of these Rules or any order of the Court in the proceedings, and may make such further or other orders or give such directions as the Court considers will facilitate the effective use of that process.

11 3. An application by a party for an order under rule 2 shall be made by motion to the Court on notice to the opposing party or parties, and shall, unless the Court otherwise orders, be grounded upon an affidavit sworn by or on behalf of the moving party.

12 4. Save where the Court for special reason to be recited in the Court's order allows, an application for an order under rule 2 shall not be made later than 28 days before the date on which the proceedings are first listed for hearing.

13 And

14 (ii) by the insertion immediately following rule 1A of Order 99 of the following:

15 2 1(B) Notwithstanding sub-rules (3) and (4) of rule 1, the Supreme Court or the High Court, in considering the awarding of the costs of any appeal or of any action, may, where it considers it just, have regard to the refusal or failure without good reason of any party to participate in any ADR process referred to in Order 56A, rule 1, where an order has been made under rule 2 of that Order in the proceedings."

16 3. The factual background aspect from the plaintiff's perspective as is set out in the plaintiff's position paper, is as follows:-

17 2 "1. The first plaintiff is the owner of an oyster fishery, now closed, in Cork Harbour. The 2nd plaintiff is a shareholder and director of the first plaintiff. For ease of reference, for the purposes of this application, it is proposed to refer to the plaintiffs collectively, as the operators of the oyster fishery the subject matter of the proceedings. The plaintiffs' complaints stem from the contamination of the fishery, from 1988 onwards, arising from the discharge of untreated, or inadequately treated sewage, into the harbour in the immediate vicinity of the plaintiffs' established oyster beds.

18 2. The oyster fishery is located in Cork Harbour near Rathcoursey, in a portion of the estuary which is near the town of Midleton. While the plaintiffs operated the fishery on foot of two Oyster Fishery Orders, of 1963 and 1970, respectively, made by the 2nd named defendant, this part of Cork Harbour has traditionally produced oysters for many, many, hundreds, if not apparently thousands, of years. The plaintiffs operated the fishery from the 1970s onwards trading as Rossmore Oysters. By developing a high level of expertise, by hard work and investment, all of which was encouraged by various state agencies (including the defendants) the plaintiffs built the fishery into a very substantial business. By the late 1980s, (when problems with the defendants began in earnest) their oysters were so highly rated that they had secured the business of 90% of the top restaurants in London. They also developed a thriving export business to Hong Kong. The stage had been reached where the value of their production accounted for about one 3rd of the national production of native and Pacific oysters. Their breeding ponds for native oysters were the largest artificial breeding complex, for this type of oyster, in the world. For the 2nd plaintiff and for his entire family this had been a lifetime's work, not just the work of the business itself but a significant amount of scientific research work all of which has been of value not merely to their business but to the wider aquacultural world.

19 3. Prior to 1988 sewage for the town of Midleton discharged at various locations at the Ballinacurra Estuary, adjacent to the town, approximately 4.5km from the plaintiffs' oyster beds. In that year, despite strenuous, and lengthy, objection from the plaintiffs, a new sewage scheme came into operation involving the sewage from Midleton being piped down to Rathcoursey point, where it would be discharged into the sea. Rathcoursey is less than 1 km away from the plaintiffs' oyster beds.

20 4. The susceptibility of shellfish, including oysters, to adulteration by waters polluted by sewage, is well known. Despite having a more or less blameless record for the condition of their production for many years prior to these discharges the plaintiffs subsequently received a significant number of complaints of people becoming ill having consumed their oysters. As was stated by Budd J., in an extensive judgement concerning discovery, in these proceedings: "Looking at [a] map with an inexpert eye one can only wonder why an inland tidal area with shellfish beds was chosen" for the location of the discharge point. From 1998 onwards there was a dramatic increase in the number of complaints from customers of illness following the consumption of the plaintiffs' oysters. This caused appalling damage to the plaintiffs business and to the reputation of their oysters.

21 5. The plaintiffs issued proceedings against the defendants in 1992. They claimed that the foreshore licence should not have been granted by the Minister to the first named...