Grant v Minister for Communications

• Jurisdiction: Ireland
• Judge: Ms. Justice Costello
• Judgment Date: 14 June 2016
• Neutral Citation: [2016] IEHC 328
• Docket Number: [2003 No. 9169 P]
• Court: High Court
• Date: 14 June 2016

[2016] IEHC 328

THE HIGH COURT

Costello J.

[2003 No. 9169 P]

BETWEEN

RICHARD GRANT, GURTEL LIMITED

AND

LASTA MARA TEORANTA

PLAINTIFFS

AND

THE MINISTER FOR COMMUNICATIONS MARINE

AND

NATURAL RESOURCES, IRELAND

AND

THE ATTORNEY GENERAL

DEFENDANTS

Arbitration – Practice & Procedures – O. 56A of the Rules of the Superior Courts – Declaratory reliefs – Application for mediation – Bona fide reasons – Interference with economic interest – Alternative dispute resolution (ADR) – Dismissal

Facts: The plaintiffs, who challenged the decisions taken by the official of the first named defendant on the ground of misfeasance in public office, now sought an order under o. 56A of the Rules of the Superior Courts for adjournment and reference the matter via ADR. The defendants contended that the matter was not suitable for mediation as serious claims of misfeasance against public officials were alleged and that the declaratory reliefs sought were more appropriate for trial.

Ms. Justice Costello refused the reliefs sought by the plaintiffs. The Court held that the dispute between the parties was not amenable to being disposed of by the ADR process. The Court, in line with the decision of the Court of Appeal in Atlantic Shellfish Ltd. & Anor. v The County Council of the County of Cork & Ors. [2015] IECA 283, held that the Court should exercise its discretion and refer the matter to the mediation only if it was appropriate to do so after taking into consideration the entire circumstances of the case. The Court observed that if the party that had been invited for mediation provided bona fide reasons for not accepting that invitation, then it would not be appropriate for the Court to grant an order for mediation. The Court, in the present case, held that the issues comprised in the proceedings were complex. The Court observed that the legal issues raised by the plaintiffs could not be resolved until the defendants were ready to abandon their defence. The Court held that the proceedings had progressed to a point that the resolution of dispute was possible only through trial and not by mediation. The Court supported the reasonable claim of the defendants to the entitlement to defend serious allegations of misfeasance by public officials which could not be resolved through mediation.

JUDGMENT of Ms. Justice Costello delivered on 14th day of June, 2016

Introduction

1 This is an application brought by the plaintiffs for an order pursuant to O. 56A of the Rules of the Superior Courts that, where this Honourable Court considered it appropriate and having regard to all the circumstances of the case, the proceedings or any other issue herein, be adjourned for such time as the Court considers just and convenient and invite the parties to use an ADR process to settle or determine the proceedings and/or for such further and other order as this Honourable Court shall deem fit in the circumstances. In the alternative, the Court is invited to adjourn the matter to facilitate the convening and holding of a mediation conference pursuant to O. 36, r. 34 of the Rules of the Superior Courts.

2 These proceedings have a lengthy history. They commenced by way of a plenary summons dated 1st August, 2003. Fifty reliefs are sought in respect of matters which occurred between 1997 and 2003. A statement of claim running to 32 pages was delivered on 30th July, 2004. A notice for particulars was raised on 19th January, 2005 which was replied to on 22nd May, 2006. No defence was delivered until 12th March, 2007. On 28th March, 2007, the plaintiffs delivered an amended statement of claim which now runs effectively to 42 pages and seeks 71 substantive reliefs.

3 The proceedings arise from the plaintiffs' businesses as boat/ship operators at various locations on the Atlantic coast and specifically relate to applications for licences, surveys, exemptions and other matters governed by various regulations. The plaintiffs challenge these decisions taken by officials of the first named defendant in relation to vessels owned or operated by the plaintiffs. The business of the first named plaintiff was the provision of marine cargo services and the second named plaintiff was engaged in the provision of marine passenger services. The third named plaintiff has discontinued the proceedings. As such, the businesses of the plaintiffs are subject to the requirements of regulations which involve, inter alia, the application of European Union law.

4 It is the plaintiffs' case that each and/or any one of them have been subjected to a series of decisions by the first named defendant, his servants or agents which were made either unlawfully, or unjustly (and/or unfairly), discriminatorily and/or in breach of European law (including the law of the European Union and/or the European Convention on Human Rights and Fundamental Freedoms) and/or for the improper purpose of either damaging the business of the plaintiffs and/or aiding the business of their competitors. It is alleged that the decisions constitute and/or amount to misfeasance in public office and/or a tort and/or a breach of the plaintiffs' rights in law and/or constitutional rights (including, inter alia, their right to earn a livelihood and/or Article 40.1) and/or rights in European law. It is alleged that the relevant EU Directive has been inadequately transposed into Irish law and there has been a breach of the plaintiffs' rights under the European Convention on Human Rights. It is said that these wrongful acts have caused damage to the business of each of the plaintiffs and it amounts to an intentional interference with the economic interests of the plaintiffs.

5 Complaint is made in relation to decisions affecting nine vessels and concerning a variety of decisions such as detaining a vessel, requiring that a rescue boat or specialised radio equipment be provided, a decision not to recognise a certificate from another country, a decision in respect of transshipment at Doolin, Co. Clare (a tidal harbour), plying limits and cargo contracts for the Aran Islands and other decisions relating to the operations of the vessels.

6 Notice of intention to proceed was issued on 4th March, 2009, and then a second notice of intention to proceed on 12th November, 2012. The defendants raised a notice for further and better particulars arising out of the amended statement of claim which was undated but apparently was served under cover of a letter dated 21st December, 2012. It was replied to on 24th January, 2013, and the amended defence issued, dated 8th February, 2013. On 10th April, 2013, a notice of change of solicitor on behalf of the plaintiffs was filed. The defendants raised further and better particulars on 17th February, 2015, seeking particulars of the losses claimed in respect of the nine vessels the subject of the proceedings. This was replied to on 13th January 2016, 11 months later after this motion had issued.

7 In addition, the parties have made discovery (at a date unspecified) in the proceedings. During the course of argument, it was submitted, and not disputed, that the action was now ready to be set down for trial to obtain a date for hearing. It is against this background that the current application must be assessed.

8 By letter dated 16th February, 2015, the plaintiffs' solicitors wrote to the defendants' solicitors inviting them to agree to...