Friends of the Irish Environment Clg v The Government of Ireland

• Jurisdiction: Ireland
• Judge: Mr. Justice MacGrath
• Judgment Date: 18 December 2018
• Neutral Citation: [2018] IEHC 740
• Docket Number: [2017 No. 793 JR]
• Court: High Court
• Date: 18 December 2018

BETWEEN

FRIENDS OF THE IRISH ENVIRONMENT CLG

APPLICANT

AND

THE GOVERNMENT OF IRELAND, IRELAND

AND

THE ATTORNEY GENERAL

RESPONDENTS

[2018] IEHC 740

[2017 No. 793 JR]

THE HIGH COURT

JUDICIAL REVIEW

Admissibility - Judicial review - National Mitigation Plan - Parties seeking an order in advance of trial regarding the admissibility of a certain document - Whether the document was admissible in evidence in Irish law

Facts: The applicant, Friends of the Irish Environment Clg, sought an order for judicial review quashing the government's decision to approve the National Mitigation Plan, which was published on 19th July, 2017 and was made pursuant to s. 4 of the Climate Change and Low Carbon Development Act 2015. The purpose of the plan was stated to be to ensure compliance with the State's obligations regarding climate change. The applicant maintained that the plan failed to comply with the requirements of that Act and that the respondents, the government, Ireland and the Attorney General, had failed to comply with national law, EU law, and the provisions of the Charter of Fundamental Rights and Freedoms, particularly Article 3 thereof. The parties applied to the High Court seeking an order in advance of trial regarding the admissibility of certain documents including a statement entitled "Statement on the human rights obligations related to climate change, with a particular focus on the right to life", the author of which was a Mr Boyd, UN Special Rapporteur on Human Rights and Environment. On the hearing of the application, the only document about which there was significant contention was that which was authored by Mr Boyd. In essence, the parties informed the Court that a modus operandi had been agreed between them regarding the manner in which the first three documents might be treated at the hearing.

Held by MacGrath J that, in so far as it had been suggested that certain parts of the report may be unobjectionable, it was inappropriate for the Court to enter upon a dissection of the report to determine what parts should be admitted and what parts should not be admitted; ultimately, the report in its entirety was designed to express a particular conclusion on which Mr Boyd did not have sufficient expertise, as explained and expounded in O'Brien v the Clerk of Dáil Éireann [2016] IEHC 597. MacGrath J held that it was therefore not admissible as a statement of an expert. MacGrath J held that Mr Boyd had not otherwise set out his expertise in relation to the proof of foreign law, which in any event had to be proven as a matter of fact and the basis for this had not been specifically established.

MacGrath J held that the statement of Mr Boyd under consideration was not one which was admissible in evidence in Irish law.

Judgment approved.

JUDGMENT of Mr. Justice MacGrath delivered on the 18th day of December, 2018.

1 In the substantive and underlying proceedings, the applicant seeks an order for judicial review quashing the government's decision to approve the National Mitigation Plan, which was published on 19th July, 2017 and was made pursuant to s. 4 of the Climate Change and Low Carbon Development Act 2015. The purpose of this plan is stated to be to ensure compliance with the State's obligations regarding climate change. The applicant maintains that the plan fails to comply with the requirements of that Act and that the respondents have failed to comply with national law, EU law, and the provisions of the Charter of Fundamental Rights and Freedoms, particularly Article 3 thereof. Proceedings are now at an advanced stage and a hearing date has been allocated to the case.

2 This is an application in which the parties seek an order in advance of trial regarding the admissibility of certain documents including a statement entitled ' Statement on the human rights obligations related to climate change, with a particular focus on the right to life', the author of which is a Mr. David R. Boyd, UN Special Rapporteur on Human Rights and Environment.

3 By way of background, on 26th October, 2018, the applicant served upon the respondents, without leave of the court, an affidavit sworn by Ms. Orla Clarke on 25th October, 2018. Ms. Clarke is a partner in the firm of solicitors representing the applicant. She avers that since the initial affidavits were prepared, further developments have occurred in respect of which the court of trial requires to be updated. She states that both parties accept that it is necessary for the court to have regard to issues of national and international scientific relevance which underpin the proceedings. Ms. Clarke refers to a replying affidavit which was sworn on behalf of the respondents by Mr. Frank Maughan on 15th February, 2018 in which he accepted that it was necessary to set out the basic framework and road map within which Ireland's national climate change policy had developed. Ms. Clarke states that it is therefore necessary to update the court in relation to that framework and road map; and to ensure that the court of trial has the most up to date information available.

4 In this regard Ms. Clarke avers that the respondent has identified part of the framework and road map as being the UN Framework Convention on Climate Change (hereafter referred to as ' the UNFCCC'). This is described as an instrument designed to ' evolve over time within the context of the international climate change regime'. She exhibits four documents which the applicant wishes to have admitted and considered at the substantive hearing. They are as follows:-

(i) A special report prepared by the Intergovernmental Panel on Climate Change, an international body for assessing the science related to climate change and which provides a scientific basis for the development of policies under the UNFCCC. Ms. Clarke avers that this report updates the scientific evidence before the court.

(ii) The Annual Review and Report 2018 of the Climate Change Advisory Council. Ms. Clarke states that this report contains the most recent climate change assessment by the Council.

(iii) A 2018 report from the Environmental Protection Agency providing updated emission projections.

(iv) A statement which has been prepared by the UN Special Rapporteur on Human Rights, Mr. Boyd, dated 25th October, 2018.

5 On 7th November, 2018, the respondents wrote to the solicitor for the applicant objecting to the late introduction of the material exhibited in Ms. Clarke's affidavit and protesting that the affidavit had been filed in the Central Office without leave of the court or without any court direction in this regard. Specific reliance was placed on O. 40, r. 19 of the Rules of the Superior Courts, which provides:-

'Where a special time is limited for filing affidavits, no affidavit filed after that time shall be used, unless by leave of the Court.'

6 The respondents requested the applicant to apply to court for leave to file and serve any additional affidavit. The applicant maintains that no special time limits have been fixed by the court for the filing of affidavits and therefore leave of the court is not specifically required. In any event, the applicant's position is that if leave of the court is required, they wish such application to be considered at this hearing.

7 On the hearing of this application, the only document about which there was significant contention is that which was authored by Mr. Boyd. In essence, the parties informed the Court that a modus operandi had been agreed between them regarding the manner in which the first three documents might be treated at the hearing.

8 Having regard to the manner in which the parties have addressed the issues and given the broad consensus of the parties regarding the first three documents, the consideration of the Court, therefore, is confined to Mr. Boyd's statement.

The purpose and intent of the admission of Mr. Boyd's report for consideration by the Court

9 At para. 8 of her affidavit, Ms. Clarke avers that the applicant is making the argument that the inadequacy of the government's National Mitigation Plan will have serious human rights implications for the applicant, its members and the population at large. She points out that the respondents have denied that the national mitigation plan will have such impacts or that there is any frailty in the plan in that regard. Her affidavit continues as follows:-

' In respect of same I beg to refer to a Statement by the UN Special Rapporteur on Human Rights and the Environment dated 25 October 2018 at Tab 4 of the booklet of exhibits. I say, believe and am advised that...