Marshall and Others v Electricity Supply Board and Others

• Jurisdiction: Ireland
• Judge: Mr Justice David Holland
• Judgment Date: 18 April 2023
• Neutral Citation: [2023] IEHC 173
• Docket Number: Record No: 2022/424 JR
• Court: High Court

Commercial Planning and Strategic Infrastructure Development

Between:

Ann Marshall, Roderick Ryan and Peter Walsh (As Executors of the Estate of Frank Dunne Deceased), Ann Marshall and Hamwood Stud Unlimited Company

Applicants

and

Electricity Supply Board, Ireland and The Attorney General

Respondents

and

Eirgrid Plc

Notice Party

2023 IEHC 173

Record No: 2022/424 JR

THE HIGH COURT

JUDICIAL REVIEW

Judicial review – Discovery – Adjournment – Applicants seeking discovery – Whether there had been compliance with a decision of the EU Commission

Facts: The applicants (Hamwood) owned and operated Hamwood Stud at Dunboyne, County Meath. Since in or about 1985 part of the Maynooth-Woodland 200kV electricity transmission line (the Line), owned by the first respondent, the Electricity Supply Board (the ESB), traversed Hamwood Stud. The ESB obtained a Wayleave for the Line at that time. On 25 February 2022, pursuant to s. 53 of the Electricity Act 1927, the ESB served on Hamwood Wayleave Notices of intention to perform works to the Line. Hamwood said that the works threatened Hamwood Stud in both its operations and its commercial reputation. It proposed that the cables be undergrounded on peripheral routes instead. Hamwood sought to quash the Wayleave Notices on various grounds, for which they had been granted leave to seek judicial review. Hamwood’s discovery motion sought the following categories: Category 1 (sought from ESB only) – all documentation detailing the ESB’s compliance with the European Commission’s Qualified Approval dated the 12 April 2013, to include but not limited to all documentation setting out the measures adopted by the ESB to ensure that it is compliant with Article 954 of Directive 2009/72/EC55 and/or Article 4356 of Directive 2019/944/EC57; Category 2 (sought from ESB and the notice party, EirGrid plc) – all documentation relating to respective roles of the ESB and EirGrid plc pursuant to Clause 7.6 of the Transmission Interface Agreement dated the 16 March 2006 (TIA); Category 3 (sought from ESB and EirGrid plc) – all documentation identifying or referring to the purpose of the Line Project and the Substation Project, to include but not limited to documentation relating to the increase in the provision of electricity to Intel; Category 4 (sought from ESB and EirGrid) – if not already covered by Category 3, all documentation relating to the sales of electricity to Intel and the anticipated increases in sales once the Line Project and the Substation Project was completed.

Held by the High Court (Holland J) that he would direct that the ESB file an affidavit stating whether and if so to what extent and how, the following Improvements/measures had been implemented: those envisaged in Chapter 7 of the SEMC Decision of February 2013, Art. 1 of the EU Commission Decision of 2013, and the recitals of the Commission Decision. He further directed that the ESB would state in that affidavit its position as to the question whether the “reasonable period of time” envisaged in Art. 1 of the Commission decision had expired. He held that ESB would also be at liberty to describe in that affidavit the nature, extent, legal basis of and legal form of all and any ring-fencing arrangements the existence of which it considered relevant to the question of discovery of Category 1. He held that that affidavit would be sworn without prejudice to the ESB’s position that any obligations imposed by the 2013 Agreements were not imposed on the ESB. It appeared to him that the interpretation of Clause 7.6 of the TIA did not depend upon any factual evidence and it was not apparent that any documents which might be discovered could affect that interpretation. In that respect, the request for discovery seemed to him entirely speculative and a fishing expedition. Accordingly he refused discovery in respect of Category 2. In his view, the allegation of breach of competition law in the case was bare and unsubstantiated – a mere assertion of which no substantive particulars or evidence had been tendered. He held that Hamwood had failed, in seeking discovery of Categories 3 and 4, to satisfy a threshold criterion of establishing a factual basis for the claim. On that ground, he held that discovery of those categories would be refused.

Holland J adjourned the question of discovery of Category 1 pending the filing by ESB of the further affidavit proffered by it and described above. He refused all other discovery sought.

Matter adjourned.

Contents

JUDGMENT OF MR JUSTICE DAVID HOLLAND DELIVERED 18th APRIL 2023	1
INTRODUCTION	1
DISCOVERY IN JUDICIAL REVIEW	6
DISCOVERY IN THIS CASE	10
CATEGORY 1: (sought from ESB only)	10
CATEGORY 2: (sought from ESB & EirGrid)	17
CATEGORY 3 & 4: (sought from ESB & EirGrid)	20
EIRGRID AS A NOTICE PARTY	23
CONCLUSION	23

JUDGMENT OF Mr Justice David Holland DELIVERED 18 ^th APRIL 2023

INTRODUCTION

1 This is my judgment in the Applicants' motion for discovery against the 1 ^st Respondent (“ESB”) and the Notice Party (“EirGrid”).

2 The Applicants (collectively, “Hamwood”) own and operate Hamwood Stud at Dunboyne, County Meath where they train and breed racehorses and farm pedigree Shorthorns. Since in or about 1985, part of the Maynooth-Woodland 200kV electricity transmission line (“the Line”), owned by the ESB, has traversed Hamwood Stud, supported by 6 steel towers on Hamwood Stud. I infer that the ESB obtained a Wayleave for the Line at that time, in reliance on which the Wayleave Notices next described were served.

3 On 25 February 2022, pursuant to S.53 of the Electricity Act 1927, the ESB served on Hamwood Wayleave Notices of intention to perform works to the Line. The works were described in schedules to the Notices and summarised in the covering letter. 1 The latter describes the works as “ Uprating and refurbishment” of the Line.

4 Hamwood says that the works threaten Hamwood Stud in both its operations and its commercial reputation. It exhibits an expert veterinary report to the effect that “the proposed works could have a very significant negative impact on these premises and they could threaten the very viability of the enterprise”. It proposes that the cables be undergrounded on peripheral routes instead. 2 In these proceedings, Hamwood seek to quash the Wayleave Notices on various grounds, for which they have been granted leave to seek judicial review. Only some of those grounds are relevant to the present discovery motion.

5 The regulation and resultant organisational structure of the electricity industry in Ireland is considerably shaped by the “unbundling” 3, progressively since the mid-1990's, of the historic monopoly of the Electricity Supply Board (“ESB”) in the generation, transmission 4, distribution 5, and sale of electricity. This unbundling is required by successive EU Directives 6 since 1996 “ concerning common rules for the internal market in electricity” in the cause of

introducing competition in the generation and sale of electricity in, as applicable to Ireland, a single all-island electricity market. Very broadly, Ireland has sought to achieve that objective while maintaining the ESB Group in a variety of “ring-fenced” 7 roles — essentially as owner of large parts of the system and a major player in the industry. The result is a bewildering plethora of interlocking roles and functions, legal entities and business units, 8 contractual arrangements, ring-fences and acronyms. 9 Individual entities may have multiple roles. Entities are awarded licences by the Commission for Regulation of Utilities 10 (“CRU”) to allow them perform those roles

6 This case, however, is concerned primarily with the transmission system, of which the Line forms part. In particular, the transmission system has:

• • A licensed Owner – ESB – the “Transmission Asset Owner” (“TAO”).

  ○ An internal ESB unit – “ESB Networks” — to perform the ESB's TAO Functions.

• • A Manager – ESB Networks DAC – the Transmission Asset Manager (“TAM”) — to manage ESB Networks' performance of ESB's TAO Functions. ESB Networks DAC is a wholly-owned subsidiary of ESB.

• • A licensed Operator – EirGrid plc – the “Transmission System Operator” (“TSO”). Eirgrid is a State-owned plc with no connection to the ESB other than that they are both State-owned.

7 The role division described above derives in the first instance from the obligations of Directive 96/92 EC 11 which sought to unbundle ESB's historic monopoly by requiring the establishment of independent roles of TAO and TSO. This was implemented by the Electricity Regulation Act 1999 and the 2000 Regulations 12 by which, inter alia, the ESB was licensed as TAO in June 2001 and EirGrid was established and licensed as TSO. By the 2000 Regulations ESB as TAO and EirGrid as TSO were required to, and they did in 2006, make a Transmission Infrastructure Agreement (TIA) – arranging and governing as between them their respective roles and interactions, as TAO and TSO and as they related to the transmission system. That 2006 TIA subsists unchanged and the ESB's TAO licence subsists unchanged since an amendment in 2007.

8 As relevant here, the ESB, as TAO, is responsible for the maintenance of the transmission system. 13 EirGrid as TSO, is responsible for the operation of the transmission system as well as its maintenance and development. It identifies and decides on the transmission

development works to be done from time to time and publishes periodic Transmission Development Plans (“TDP”) accordingly. The TIA governs the process in some detail but essentially EirGrid requires ESB to perform those works to EirGrid's specification and at ESB's expense. ESB performs those works by its internal “Engineering and Major Projects” business unit

9 Unbundling has been an iterative process. By Article 9 14 of Directive 2009/72/EC 15, 3 models of organisational...