John Ronan & Sons v Clean Build Ltd (in Voluntary Liquidation) and Others

• Jurisdiction: Ireland
• Judge: Mr. Justice Clarke
• Judgment Date: 21 December 2011
• Neutral Citation: [2011] IEHC 499
• Judgment citation (vLex): [2011] 12 JIC 2110
• Court: High Court
• Date: 21 December 2011

[2011] IEHC 499

THE HIGH COURT

[No. 93 M.C.A./2008]

[No. 88 M.C.A./2009]

[No. 4806 S/2010]

John Ronan & Sons v Clean Build Ltd (In Voluntary Liquidation) & Ors

IN THE MATTER OF THE WASTE MANAGEMENT ACTS 1996 (AS AMENDED) AND THE PROTECTION OF THE ENVIRONMENT ACT 2003 AND IN THE MATTER OF SECTION 57 OF THE WASTE MANAGEMENT ACT 1996 AS AMENDED BY SECTION 48 OF THE PROTECTION OF THE ENVIRONMENT ACT 2003

AND IN THE MATTER OF SECTION 58 OF THE WASTE MANAGEMENT ACT 1996 AS AMENDED BY SECTION 49 OF THE PROTECTION OF THE ENVIRONMENT ACT 2003

BETWEEN:

JOHN RONAN AND SONS

APPLICANT

AND

CLEAN BUILD LIMITED (IN VOLUNTARY LIQUIDATION), LAURENCE MULLIN, JOHN CHARLES FARRELL, JAMES REDMOND, LIAM O'RUA AND GARY ROE

RESPONDENTS

AND

SOUTH DUBLIN COUNTY COUNCIL

NOTICE PARTY

IN THE MATTER OF THE WASTE MANAGEMENT ACTS 1996 AND 2003 AND IN THE MATTER OF AN APPLICATION BY SOUTH DUBLIN COUNTY COUNCIL PURSUANT TO SECTION 57 OF THE WASTE MANAGEMENT ACT 1996 AS AMENDED BY SECTION 48 OF THE PROTECTION OF THE ENVIRONMENT ACT 2003

AND IN THE MATTER OF SECTION 58 OF THE WASTE MANAGEMENT ACT 1996 AS AMENDED BY SECTION 49 OF THE PROTECTION OF THE ENVIRONMENT ACT 2003

SOUTH DUBLIN COUNTY COUNCIL

AND

KEN FENNELL (LIQUIDATOR), CLEAN BUILD LIMITED (IN VOLUNTARY LIQUIDATION), LIAM O'RUA, GARY ROE, JOHN RONAN AND SONS, LAURENCE MULLIN, JAMES REDMOND, AND JOHN CHARLES FARRELL

SOUTH DUBLIN COUNTY COUNCIL

AND

LIAM O'RUA, GARY ROE AND JOHN RONAN AND SONS

JOHN RONAN & SONS v CLEAN BUILD LTD & ORS UNREP CLARKE 4.8.2011 2011 IEHC 350

JOHN RONAN & SONS v CLEAN BUILD LTD (IN VOLUNTARY LIQUIDATION) & ORS UNREP CLARKE 1.12.2011 2011 IEHC 498

WASTE MANAGEMENT ACT 1996 S57

WASTE MANAGEMENT ACT 1996 S58

ACC BANK PLC v JOHNSTON (T/A BRIAN JOHNSTON & CO SOLICITORS) & ORS UNREP CLARKE 24.10.2011 2011 IEHC 500

VEOLIA WATER UK PLC & ORS v FINGAL CO COUNCIL 2007 2 IR 81 2006/57/12085 2006 IEHC 240

KAVANAGH v GOVERNMENT OF IRELAND & ORS UNREP SMYTH 21.11.2007 2007/31/6446 2007 IEHC 389

MENNOLLY HOMES LTD v APPEAL COMMISSIONERS & REVENUE COMMISSIONERS UNREP CHARLETON 9.3.2010 2010/34/8432 2010 IEHC 56

MCALEENAN v AIG (EUROPE) LTD UNREP FINLAY GEOGHEGAN 16.7.2010 2010/30/7665 2010 IEHC 279

RSC O.99 r1(3)

RSC O.99 r1(4)

WASTE MANAGEMENT ACT 1996 S58(3)(B)

WASTE MANAGEMENT ACT 1996 S57(1)(C)

CALDERBANK v CALDERBANK 1978 3 AER 333

KALIX FUND LTD & ANOR v HSBC INSTITUTIONAL TRUST SERVICES (IRL) LTD UNREP CLARKE 16.10.2009 2009/29/7216 2009 IEHC 457

PRACTICE & PROCEDURE

Costs

Complex proceedings - Multiple proceedings - Rule that costs follow the event - Test to be applied - Waste management - Whether proceedings initially commenced to prevent continuance of unlawful waste activity - Whether focus of proceedings shifted to remediation measures - Whether significant overlap in proceedings - Whether unnecessary duplication of matters - Whether court should treat costs in multiple proceedings heard together as being one set of costs - Whether successful party added to costs of proceedings - Whether one successful party significantly added to litigation - Whether party entitled to be heard should recover costs as a result - Whether parties had legitimate interest in outcome of remediation dispute - Whether statutory agency should ensure claims not too wide - Whether broad equivalence between issues won and lost by successful party - Whether costs should be apportioned among unsuccessful parties - Whether costs should be awarded to successful party for time spend among unsuccessful parties seeking to delineate liability - Whether unsuccessful parties entitled to indemnity and/or contribution - Whether party successful in obtaining judgment for €6,336.50 entitled to District Court costs only - Whether prudent for parties entering into complex waste management litigation to set out precise position in absence of formal procedure - ACC Bank plc v Johnston [2011] IEHC 500 (Unrep, Clarke J, 24/10/2011) and Kalix Fund Ltd v HSBC Institutional Trust Services (Ireland) Ltd [2009] IEHC 457 (Unrep, Clarke J, 16/10/2009) followed - John Ronan & Sons v Clean Build Ltd [2011] IEHC 350 (Unrep, Clarke J, 4/8/2011) and John Ronan & Sons v Clean Build Ltd (in voluntary liquidation) [2011] IEHC 499 (Unrep, Clarke J, 21/12/2011) considered - Rules of the Superior Courts 1986 (SI 15/1986), O99 - Costs orders made (2008/93 MCA, 2009/88MCA & 2010/4806S - Clarke J - 21/12/2011) [2011] IEHC 499

John Ronan & Sons Ltd v Clean Build Ltd (in voluntary liquidation)

Facts: Three sets of proceedings were before the Court, including the Ronan proceedings and South Dublin Council proceedings which were brought under the Waste Management Acts 1996, as amended. Separately, South Dublin Council brought a case seeking to recover certain sums expended by them in remediating a site. Orders were sought requiring Mr. Mullin, Mr. Farrell, Mr. Redmond and Mr. O' Rua to enter into appropriate waste management contracts for remediation. Ronan was found to have a residual obligation to meet such costs if it were impossible for the others to meet their obligations. The Court had found Mr. Mullin and Mr. Redmond had personal responsibility. The Court had to consider the question of costs in a complex case.

Held by Clarke J. that the Court would make an order that no order would be made as to the costs of South Dublin Council. Ronan was entitled to all of the costs to the commencement of proceedings as against Mr. Mullin and Mr. Redmond on a joint and several basis. On the balance of Ronan's costs, 25% were ordered jointly and severally against Mr. Mullin, Mr. Farrell, Mr. Redmond and Mr. O' Ruas with the remaining 75% being divided in the manner set out in the principal judgment. There would be an order that Mr. Roe recover the costs of his involvement on the basis of a single action and the order would be joint and several against South Dublin Council and Ronan. As and between South Dublin Council and Ronan there would be an order for any excess over 50% which either party had to meet.

Reporter: E.F.

1. Introduction

2 2 1.1 The substantive issues in this long running litigation have now been finally determined. See John Ronan & Sons & Anor v. Clean Build Limited (in voluntary liquidation) & Ors [2011] IEHC 350, together with John Ronan & Sons & Anor v. Clean Build Limited (in voluntary liquidation) & Ors (Unreported, High Court, Clarke J., 1 ^st December, 2011). For convenience I will use the same defined terms here as in those judgments.

3 3 1.2 There were, in total, three sets of proceedings before the court. The Ronan proceedings and the South Dublin Council proceedings were brought under the provisions of the Waste Management Acts. Separately, South Dublin Council brought a case seeking to recover certain sums expended by them in remediating the site, the subject of these proceedings (namely South Dublin County Council v O'Rua & Ors. bearing record No.2010 4806 S). That case was brought by summary summons placing reliance on the provisions of the Waste Managements Acts which permit sums so expended to be recovered, in an appropriate case, as a simple contract debt.

4 4 1.3 The detailed form of orders which were made under the Waste Management Acts (ss. 57 and 58) are set out in paras. 2.4 to 2.6 of the judgment of the 1 ^st December. In substance, those orders require Mr. Mullin, Mr. Farrell, Mr. Redmond and Mr. O'Rua to enter into appropriate waste management contracts for remediation in accordance with what is described as the revised MEL report with the payments to be made in the proportions previously set out in the principal judgment. Provision is made for indemnities between the parties to the extent that any individual does not pay for a share in the cost of remediation for which another individual is jointly and severally responsible. Provision is also made for Ronan to act as a guarantor to the extent that any or all of the individuals found responsible fail to secure or pay for the requisite contract. Thus, in substance, the four named individuals were found responsible, to the extent set out in the principal judgment, for the waste and thus to be responsible for an appropriate proportion of the costs of remediation. Ronan was found to have a residual Obligation to meet such costs but only to the extent that it should prove impossible for any of the named individuals to meet their obligations. For the reasons set out in the principal judgment, Mr. Roe was absolved from any liability.

5 5 1.4 Finally, so far as South Dublin Council's money claim is concerned, judgment was entered against Mr. O'Rua in the sum of €6,336.50. The extent of the liability, if any, of Ronan in respect of monies expended by South Dublin Council was remitted to plenary hearing. At a very broad level, the above describes the "event" in the sense of the result of the various proceedings. However, before going on to attempt to fashion a fair and just costs order, a number of general observations seem to me to be appropriate.

2. General Observations

2 2 2.1 Two particular aspects of the course of these proceedings do need to be noted even at this initial stage. First, when the Ronan proceedings were commenced initially, it seems to me to be fair to characterise those proceedings as being ones which were principally concerned with preventing the continuance of unlawful waste activity. The proceedings were successful in that regard. Undertakings were given to the court and, at least to a very significant extent, further unlawful waste activity ceased. It does have to be noted that, at the time the proceedings commenced, Mr. Farrell was no longer involved in Clean Build. Clean Build itself, of course, has since been dissolved. However, for the reasons explored in the principal judgment, I was satisfied that both Mr. Mullin and Mr. Redmond had...