Atlantic Shellfish Ltd v County Council of the County of Cork

• Jurisdiction: Ireland
• Judge: Ms. Justice Irvine
• Judgment Date: 07 December 2015
• Neutral Citation: [2015] IECA 283
• Court: Court of Appeal (Ireland)
• Docket Number: [C.A. No. 277 of 2015],Appeal No. 2015/277
• Date: 07 December 2015

Atlantic Shellfish Limited and David Hugh-Jones.

Plaintiffs/Appellants

and

The County Council of the County of Cork, The Minister for the Marine and Natural Resources, Ireland and the Attorney General

Defendants/Respondents

[2015] IECA 283

Kelly J.

Irvine J.

Hogan J.

Appeal No. 2015/277

THE COURT OF APPEAL

Administrative & constitutional law – Courts & tribunals – Practice – Alternative dispute resolution – Exercise of discretion to invite parties to engage in ADR – Order 56A, rule 2 of the Rules of the Superior Courts, 1986

Facts: The parties were in dispute regarding losses alleged to have incurred in respect of their oyster business as a result of poor water treatment. The plaintiffs asked that the matter be referred to mediation, which they contended the defendants had failed to respond to. The plaintiffs brought the matter before the Court on a motion under Order 56A, rule 2 of the Rules of the Superior Courts, 1986. The High Court had declined to make an order, and the plaintiffs now appealed that refusal.

Held by Ms Irvine J, that the Court would dismiss the appeal. The Court stated that a great deal of cases would benefit from the mediation process, but in the instant matter the Court was satisfied that the legal issues were not suitable for determination in a mediation forum. The High Court had correctly refused the application on that basis.

JUDGMENT of Ms. Justice Irvine delivered on the 7th day of December 2015

1 This appeal focuses upon the circumstances in which a court should exercise its discretion in favour of making an order pursuant to Order 56A, rule 2 of the Rules of the Superior Courts, 1986 inviting the parties to litigation to engage in a process of Alternative Dispute Resolution ('ADR'). In this case the High Court, Gilligan J., refused to make such an order at the behest of the plaintiffs on 15th May, 2015. It is that refusal that forms the subject matter of the present appeal.

Background

2 The first named plaintiff, Atlantic Shellfish Limited, ('Atlantic') is the owner of an oyster fishery located in Cork Harbour. The second named plaintiff is a shareholder and director of Atlantic. Atlantic operates its business on foot of certain Oyster Fisheries Orders made in 1963 and 1970 and has been selling its oysters into international restaurants, but particularly into the London market for upwards of thirty years.

3 The factual circumstances that give rise to these proceedings, which were instituted in 2001, focus upon the plaintiffs' contention that their oyster fishery, which is now closed, was from 1988 onwards contaminated by reason of the discharge of untreated or inadequately treated sewage into the harbour in the immediate vicinity of its established oyster beds.

4 According to the plaintiffs, prior to 1988, sewage from the town of Midleton, County Cork, was discharged into the Ballinacurra Estuary which is approximately 4.5 kms from its oyster beds. However, it is asserted that in 1998 a new sewage scheme came into operation as a result of which the sewage was then discharged into the sea less than 1 km from Atlantic's fishery operations. Thereafter, the plaintiffs maintain that there was a dramatic increase in the number of complaints that they received concerning illness experienced by restaurant customers who had eaten their oysters. The plaintiffs allege that the reason so many became ill was because the first named defendant had allowed untreated effluent to be pumped into Cork Harbour with the result that the sewage had caused gross contamination of their oyster farm. These complaints allegedly caused significant damage to Atlantic's business and to the reputation of its oysters.

5 As a result of these events, in 1992 the plaintiffs issued proceedings ('the 1992 proceedings') against Cork County Council and the Minister for the Marine. As against the County Council the plaintiffs claimed that by the manner in which it had operated the waste water treatment scheme for Cork it had been guilty of negligence, breach of duty, breach of statutory duty and nuisance. As against the Minister, the plaintiffs challenged the granting of the Foreshore Licence of 5th March, 1986, which permitted, they maintained, the piping of the sewage from Midleton and its disposal into the harbour approximately 1 km from their oyster beds. Further and in the alternative the plaintiffs sought various injunctions seeking to prevent the continuing discharge of effluent into the harbour at that location.

6 The 1992 proceedings were settled on terms which included a substantial financial payment to the plaintiffs and also an undertaking from the local authority to bring into operation a secondary waste water treatment plant incorporating certain safeguards before the 20th June, 2000. The terms of the settlement of the 1992 proceedings were committed to writing.

7 Regrettably, notwithstanding the installation of a new waste water treatment plant, which the plaintiffs have at all times maintained did not comply with the terms of settlement of the 1992 proceedings, the plaintiffs continued to note very high levels of bacterial matter in their oysters. Further, according to the plaintiffs, very significant numbers of customers continued to report illness as a result of consuming their shellfish.

8 On 20th February, 2002, the plaintiffs were directed by the Minister and the Food Safety Authority to immediately cease harvesting oysters. According to the plaintiffs, in March, 2002 the local authority admitted that between January and March of that year there had been overflows of untreated effluent every day into Cork Harbour. Further, according to the plaintiffs, following the recommencement of operations in April, 2002 Atlantic continued to receive reports that significant numbers of customers had become ill as a result of consuming their oysters. As a result of a combination of these factors Atlantic maintains that it had no option but to close its business on a permanent basis in October, 2002. It is the losses arising from this closure that are at the forefront of these proceedings.

The nature of the present claim

9 The within proceedings were commenced by plenary summons on 16th October, 2001. Whilst I will return to consider in greater detail the plaintiffs' claim against the second, third and fourth named defendants ('The State defendants') it is sufficient at this point to note that the reliefs sought by the plaintiffs include a declaration that by virtue of the failure of the first named defendant to bring into operation on or before 30th June, 2000, a secondary waste water treatment plant, the first and second named defendants repudiated the terms of settlement of the 1992 proceedings. Conditional upon the success of that claim the plaintiffs also seek further relief which includes:-

(a) A declaration that the Foreshore Licence of 5th March, 1996, was ultra vires the power of the Minister as being unconstitutional and in breach of the Foreshore Act 1933 and is null and void; and

(b) An order directing the second named defendant to secure compliance with the Foreshore Licence so as to prevent the first named defendant from continuing to discharge sewage or other effluent into the harbour such as to constitute a nuisance to the plaintiffs' oyster fishery.

10 In addition to the aforementioned pleas the plaintiffs maintain a claim for damages in respect of all of the losses sustained as a result of the wrongdoing on the part of the defendants.

11 It should be noted that since the hearing of the application in the High Court that Irish Water has been added as a fifth named defendant to the proceedings.

12 Full defences were delivered by the State defendants on 12th February, 2003, and on behalf of the first named defendant on 6th August, 2003. Finally, of relevance to the proceedings and their progress is the fact that the State defendants by notice of motion dated the 5th February, 2010, brought an application to the High Court seeking the trial of a number of preliminary issues. A like application was also brought by the first named defendant. As a result, by Order dated the 9th June 2010 Laffoy J. in Atlantic Shellfish Ltd. & anor v. Cork County Council & ors [2010] IEHC 294 directed that certain legal issues be determined by way of preliminary issue and further ordered by agreement between the parties 'that the issue of liability herein be determined first leaving the issue of quantum over pending a decision on liability'.

13 By letters dated 15th May, 2014, the plaintiffs invited the State defendants to participate in a process of mediation and by letter dated 5th June, 2014, made a similar invitation to the first named defendants. It was the State defendant's failure to respond positively to this invitation that led to the issue by the plaintiffs of a notice of motion seeking an order pursuant to Order 56A, rule 2 of the Rules of the Superior Courts, 1986. In his affidavit grounding that application Mr. Ricky Kelly, solicitor acting on behalf of the plaintiffs, advised that it was his opinion that the proceedings were almost ready to be called on for trial and were of a nature that 'could substantially benefit from mediation, if only to narrow the issues for trial'.

Discussion

Order 56A

14 The relevant provisions of Order 56A of the Rules of the Superior Courts, 1986 are as follows:-

'1. In this Order:

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

'party' includes the personal representative of a deceased party.

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...