Friends of the Irish Environment CLG v Minister for Communications Climate Action and the Environment Ireland

• Jurisdiction: Ireland
• Judge: Mr. Justice Garrett Simons
• Judgment Date: 03 April 2020
• Neutral Citation: [2020] IEHC 159
• Docket Number: 2020 No. 76 J.R.
• Court: High Court
• Date: 03 April 2020

BETWEEN

FRIENDS OF THE IRISH ENVIRONMENT CLG

APPLICANT

AND

MINISTER FOR COMMUNICATIONS CLIMATE ACTION AND THE ENVIRONMENT IRELAND

AND

THE ATTORNEY GENERAL

RESPONDENTS

SHANNON LNG LIMITED

NOTICE PARTY

[2020] IEHC 159

Garrett Simons J.

2020 No. 76 J.R.

THE HIGH COURT

JUDICIAL REVIEW

Judicial review – Adjournment – Public interest – Respondent seeking an adjournment of the substantive hearing of the judicial review proceedings – Whether there was conflict between ensuring that the hearing went ahead as scheduled and allowing the officials time to carry out their role

Facts: The applicant for judicial review, Friends of the Irish Environment, sought to challenge the inclusion of the Shannon LNG terminal and connecting pipeline in the 4th Union list of Projects of Common Interest (PCI List). The principal relief sought in the proceedings was that the High Court should make a reference to the Court of Justice of the European Union to determine the validity of the adoption of the PCI List. The respondents to the judicial review proceedings, the Minister for Communications, Climate Action and the Environment, Ireland, and the Attorney General, applied to the High Court for an adjournment of the substantive hearing of the proceedings. The adjournment application was grounded upon the affidavit of Mr Brady, a Principal Officer in the Department of Communications, Climate Action and Environment. The adjournment application was opposed by the applicant. First, it was submitted that much of what had been identified by Mr Brady as matters in respect of which the State respondents “may” wish to file affidavit evidence did not appear to be factual evidence at all. Secondly, it was submitted that, in any event, all those matters, if considered relevant, must also have been relevant at the time the decisions were taken. Thirdly, it was submitted that Mr Brady had not identified any file or document that was inaccessible, let alone the person to whom it was inaccessible, the reason for that inaccessibility, what efforts were being made to restore access and when such access would be restored.

Held by Simons J that, having considered the affidavit evidence, the submissions, and the nature of the claim advanced in the judicial review proceedings, he was not satisfied that there was any conflict between (i) ensuring that the hearing went ahead on 30 June 2020, and (ii) allowing the officials time to carry out their vital role. Simons J held that there was an obvious public interest in ensuring that a challenge to the inclusion of the Shannon LNG project within the adopted PCI List was determined expeditiously, the nature and extent of the work actually required from the Departmental officials in relation to the proceedings appeared to be considerably less than Mr Brady apprehended, and it seemed that at least part of the rationale for the adjournment stemmed from practical or logistical difficulties presented by the relevant officials having to work from home.

Simons J held that the application for an adjournment would be dismissed and that the substantive hearing of the judicial review proceedings would go ahead, as scheduled, on 30 June 2020.

Application refused.

JUDGMENT of Mr. Justice Garrett Simons delivered on 3 April 2020

INTRODUCTION

1 This judgment sets out my ruling in respect of an application for an adjournment of the substantive hearing of these judicial review proceedings. The adjournment application has been dealt with on the papers, i.e. without an oral hearing in open court. Each of the parties was instead afforded an opportunity to state their position in correspondence. None of the parties took up the court's invitation to request an oral hearing.

2 The ruling is being published by way of a formal judgment in order to ensure compliance with the constitutional requirement that, save in such special and limited cases as may be prescribed by law, justice shall be administered in public. This judgment will be posted on the Courts Service's website.

PROCEDURAL HISTORY

3 These proceedings have been admitted to the Strategic Infrastructure Development List of the High Court ( “the SID List”). The SID List had been established by the President of the High Court (Kelly P.) in February 2018 to ensure that legal proceedings in respect of strategic infrastructure development projects are afforded an expeditious hearing. To this end, such proceedings are subject to active case management, and are assigned early hearing dates. The judge assigned to hear the case reads the papers in advance of the substantive hearing, and this ensures that the hearing is more focused.

4 The judge in charge of the SID List, McDonald J., admitted the proceedings into the list on 13 February 2020. Directions have been given as to the exchange of pleadings, affidavits and written legal submissions. The substantive hearing of the application for judicial review has been fixed for 3 to 4 days commencing on 30 June 2020. McDonald J. has since assigned the case to me for hearing.

5 The adjournment application has been made on behalf of the respondents to the proceedings, namely the Minister for Communications Climate Action and the Environment, Ireland, and the Attorney General ( “the State Respondents”). The adjournment application is opposed by the applicant for judicial review, Friends of the Irish Environment ( “the Applicant”). No submission has been received from the notice party.

ADJOURNMENT APPLICATION

6 The adjournment application is grounded upon the affidavit of Mr Kevin Brady. Mr Brady is a Principal Officer in the Department of Communications, Climate Action and Environment ( “the Department”).

7 The nature of the evidence which the Department may wish to adduce in their opposition papers is identified as follows (at paragraph 11 of the affidavit).

“In order to respond to the Applicant's case, the Respondent may wish to adduce evidence on inter alia the facts as they relate inter alia to the security of energy supply of the European Union as well as that of the State; the technical and scientific evidence on the relative greenhouse gas emissions from different energy sources in the energy mix of the State and the Union; the nature of the legal duties of States and the Union during the transition to a low-carbon economy; and the respective roles of the Union institutions, the Regional Groups, the Agency for the Cooperation of Energy Regulators and the Member States in the Regulation as well as the procedures followed in the case of the approval process at issue in this case and, to the extent that it is able and/or privy to same, the facts relating to the procedure followed at EU level leading up to the Commission approval at issue, including the public participation process that has taken place in relation to the PCI list at EU level.”

8 The affidavit goes on to explain that the team within the Department which is principally responsible for dealing with the issues raised by these proceedings is a small team, consisting of two full-time individuals who are managed by a Principal Officer. The officials are responsible for security of supply policy in relation to natural gas and electricity, but also have a range of other additional responsibilities, including gas regulatory policy, renewable gas policy, renewable heat policy and commercial and public sector energy efficiency policy.

9 The exceptional circumstances underlying the adjournment application are then detailed as follows (at paragraphs 13 and 14 of the affidavit).

“I say that these team members along with a number of other colleagues in the Department of Communications, Climate Action and Environment are dealing at present with the implications and potential future implications of the COVID-19 virus for the security of supply of Ireland's natural gas and electricity systems. I say and believe that the individuals working on this issue are the same individuals, as set out above, as those who have the knowledge and expertise to prepare the State's response to these proceedings. I say and believe that this team is currently working with the Commission for Regulation of Utilities, Gas Networks Ireland, EirGrid and ESB Networks to ensure the continued safe and secure supplies of electricity and natural gas within the State. I say and believe that this work is being given the highest priority in the national interest at present.

I further say and believe that these staff working are at present, due to the national measures put in place to deal with the COVID-19 virus, working remotely which means that the individuals at issue cannot work as efficiently as they would otherwise be able to and do not all currently have access to their full paper and digital files that would be necessary to provide full instructions in these proceedings.”

10 Mr Brady then prays for an adjournment. In earlier correspondence (which has been exhibited), it had been suggested that the substantive hearing might be adjourned to a date in October 2020.

11 The Applicant opposes the adjournment application. The principal grounds for so doing are set out as follows in its submission of 2 April 2020. (See letter from FP Logue Solicitors). First, it is submitted that much of what has been identified by Mr Brady as matters in respect of which the State Respondents “may” wish to file affidavit evidence does not appear to be...