County Monaghan Anti-Pylon Ltd v Eirgrid Plc

• Jurisdiction: Ireland
• Judge: Mr Justice Charleton
• Judgment Date: 30 March 2012
• Neutral Citation: [2012] IEHC 103
• Court: High Court
• Date: 30 March 2012

[2012] IEHC 103

High Court

Record Number 11382P/2011

County Monaghan Anti-Pylon Ltd v Eirgrid Plc

Commercial

Between:-

County Monaghan Anti-Pylon Limited

plaintiff

-and-

Eirgrid plc

defendant

COMPANIES ACT 1963 S390

PLANNING & DEVELOPMENT ACT 2000 S181B

PLANNING & DEVELOPMENT ACT 2000 S182C(5)(B)

PLANNING & DEVELOPMENT (AMDT) ACT 2010 S64

PLANNING & DEVELOPMENT ACT 2000 S182B

CONNAUGHTON ROAD CONSTRUCTION LTD v LAING O'ROURKE IRL LTD UNREP CLARKE 16.1.2009 2009/9/2055 2009 IEHC 7

TRIBUNE NEWSPAPERS (IN RECEIVERSHIP) v ASSOCIATED NEWSPAPERS IRL UNREP FINLAY GEOGHEGAN 25.3.2011 (EX TEMPORE)

USK DISTRICTS RESIDENTS ASSOCIATION LTD v ENVIRONMENTAL PROTECTION AGENCY & GREENSTAR RECYCLING HOLDINGS LTD 2006 1 ILRM 363 2006/56/12022 2006 IESC 1

LISMORE HOMES LTD v BANK OF IRELAND FINANCE LTD & ORS (NO 3) 2001 3 IR 536 2002 1 ILRM 541 2001/14/3907

IRISH COMMERCIAL SOCIETY LTD (IN LIQUIDATION) & ORS v PLUNKETT & ORS 1988 IR 1 1989 ILRM 461 1988/8/2405

LISMORE HOMES LTD (IN LIQUIDATION) v BANK OF IRELAND FINANCE LTD & ORS 1999 1 IR 501 1998/23/9074

INTER FINANCE GROUP LTD v KPMG PEAT MARWICK T/A KPMG MANAGEMENT CONSULTING UNREP MORRIS 29.6.1998 2000/11/4104

FRAMUS LTD & ORS v CRH PLC & ORS 2004 2 IR 20 2004 2 ILRM 439 2004/18/4116

SEE CO LTD T/A SOUTH EAST ELECTRIC CO v PUBLIC LIGHTING SERVICES LTD & PETIT JEAN (UK) LTD 1987 ILRM 255 1986/4/1452

LANCEFORT LTD v BORD PLEANALA & ORS 1998 2 IR 511 1998/8/2345

DERMOT PEPPARD & CO LTD & SMYTH v BOGOFF & ORS 1962 IR 180 1963 97 ILTR 12

RSC O.29 r1

RSC O.58 r17

WEST DONEGAL LAND LEAGUE LTD v UDARAS NA GAELTACHTA & ORS 2007 ILRM 1 2006/57/12198 2006 IESC 29

MOORVIEW DEVELOPMENTS LTD & ORS v FIRST ACTIVE PLC & ORS UNREP SUPREME 23.2.2012 2012 IESC 22

MILLSTREAM RECYCLING LTD v TIERNEY & NEWTOWN LODGE LTD UNREP 9.3.2010 2010/34/8547 2010 IEHC 55

COLLINS v DOYLE 1982 ILRM 495 1982/10/1849

COMHLUCHT PAIPEAR RIOMHAIREACHTA TEO (IN VOLUNTARY LIQUIDATION) v UDARAS NA GAELTACHTA & ORS 1987 IR 684 1987/1/202

HERNAN THIS BORROWED EARTH: LESSONS FROM THE FIFTEEN WORST ENVIRONMENTAL DISASTERS AROUND THE WORLD 2010

PRACTICE & PROCEDURE

Security for costs

Termination of oral planning hearing - Plaintiff seeking damages for negligence - Defendant applying for security for costs - Plaintiff accepting inability to pay defendant's costs if unsuccessful - Whether defendant having reasonably sustainable defence - Whether special circumstances so as not to award security for costs - Application refused (2011/11382P - Charleton J - 30/3/2012) [2012] IEHC 103

County Monaghan Anti-Pylon Ltd v Eirgrid plc

Facts The plaintiff company, which was limited by guarantee, was formed for the purpose of opposing the routing through Monaghan county of above-ground electric cables on pylons pursuant to a scheme referred to as the Meath-Tyrone 400kw interconnector. The defendant applied for planning permission in December 2009 for the aforementioned scheme. An Bord Pleanala decided that an oral hearing was appropriate. On the 23rd day of the hearing counsel for the defendant announced that the hearing could go no further due to a mistake in the newspaper advertisements regarding the height of the proposed pylons and the application was therefore withdrawn. It was almost certain that another application to pursue the development of this scheme would be made. The plaintiff instituted proceedings seeking damages from the defendant for money lost in preparation of and participation in the oral hearing. The bulk of that money was spent on lawyers' fees and on funding an expert report. The plaintiff essentially sought to recover those lost monies in order to fund representation at any future oral hearings in respect of the relevant scheme. The main defence raised by the defendants was that the plaintiff proved no loss and since loss was a constituent of the tort of negligence it was argued that as a matter of law the claim for damages was flawed. It was accepted that the plaintiff will not be in a position to pay the costs of this action should the claim be successfully defended. Consequently, the defendant applied herein for an order for security for costs against the plaintiff company pursuant to s. 390 of the Companies Act, 1963.

Held by Charleton J. in refusing the application: 1). That making an order against a company for security for a defendant's costs to be lodged in advance of a hearing is a matter of discretion that is exercised on settled principles. There are two basic requirements, namely, the defendant must show that it has a reasonably sustainable defence and it must also show that the plaintiff is insolvent or so financially challenged that it will not be able to pay the defendant's costs if successful. Furthermore, an order for security for costs, if made, must be for the full sum of costs.

Tribune Newspapers (In Receivership) v Associated Newspapers Ireland (High Court, unreported, 25 march 2011) adopted in relation to establishing a prima facie defence.

2). That there was sworn evidence from the plaintiff herein detailing specific items of expenditure that were related to the abandoned oral hearing. In any event it was a matter of common sense that experts and lawyers would have to be paid for their services. Furthermore, had the oral hearing not been abandoned, the money raised by the plaintiff company, if it had not been wasted would have been available for participation in the oral hearing. Consequently, if the oral hearing had taken place, the plaintiff would not have instituted this action for damages. Insofar, as the defendant could argued that the plaintiff may fail in establishing proximity or a duty of care for the purposes of negligence or that public policy should debar an award of damages, the special circumstance demonstrated to the court, namely the ruination of the plaintiff company due to the actions of the defendant, required the court to exercise its discretion against the grant of an order for security for costs.

LO'S.

1 Judgment of Mr Justice Charleton delivered on the 30th day of March 2012

2 1. This is an application by the defendant, which I will call Eirgrid, for security for costs against the plaintiff company, hereafter Monaghan Anti-Pylon, under s. 390 of the Companies Act 1963, as amended. That section provides:-

3 Where a limited company is plaintiff in any action or other legal proceeding, any judge having jurisdiction in the matter, may, if it appears by credible testimony that there is reason to believe that the company mill be unable to pay the costs of the defendant if successful in his defence, require sufficient security to be given for those costs and may stay all proceedings until the security is given.

4 2. It is accepted that Monaghan Anti-Pylon will not be able to pay the costs of this action should Eirgrid defend it successfully. Monaghan Anti-Pylon is a company limited by guarantee. The plaintiff company was formed for the purpose of opposing the routing through Monaghan county of above-ground electric cables on pylons pursuant to a scheme referred to as the Meath-Tyrone 400kw interconnector. What this is about is the construction of routes throughout Ireland for delivering very high power levels of electricity as an infrastructure project. Some people feel that installing highly charged electric cable above ground constitutes a danger to human health. Putting such cables under the ground, they claim, is the only safe way to install an electric interconnector infrastructure throughout the island. The Court expresses no view on this. The scheme to bring such pylons from Tyrone to Meath cuts across county Monaghan and has aroused concerted opposition. This manifested itself in a committee and later, on the 7 ^th of May 2010, the plaintiff company was incorporated. Its basic object is to oppose the scheme in favour of a buried electricity interconnector network.

Background

5 3. The Planning and Development (Strategic Infrastructure) Act 2006 introduced the concept of planning applications for important infrastructural projects being made in the first instance to An Board Pleanála instead of to a local planning authority. This was done by introducing new sections to the Planning and Development Act 2000, the relevant one here being s. 181B. When a planning application is made the Board may, in its absolute discretion, organise a public enquiry whereby a team of inspectors look into the proposal, hear evidence and submissions and then report back on the core issue of the conformity of the proposal with proper planning and sustainable development. The Board will on consideration of the report decide in favour of or against planning or will, in respect of these projects, exercise the power to state a provisional view under s.l82C(5)(b) that were certain alterations to be made it would be appropriate to grant permission.

6 4. In December 2009 Eirgrid applied for planning permission to An Board Pleanála for the scheme in question. The Board decided that an oral hearing was appropriate. Two inspectors were appointed. At a preliminary hearing in April 2010, the inspectors made it clear that because of a delay in amending the Act of 2000 to provide for costs in such circumstances, that no costs could be awarded by the Board to those who participated in the planning enquiry. Apparently, the necessary consequential change to the Act of 2000 had not been made when the new strategic infrastructure provisions were introduced. Since the introduction of s. 64 of the Planning and Development Act 2010, which came into force, I am told, in November of that year, s. 182B of the Act of 2000 has been amended to allow the Board to grant costs in circumstances that include a possible award to those participating in an oral hearing. If, however, the Board never gets to make a...