Murphy Enviromental Hollywood Ltd v Spencer Place Development Company Ltd
| Jurisdiction | Ireland |
| Judge | Ms. Justice Costello |
| Judgment Date | 21 December 2017 |
| Neutral Citation | [2017] IEHC 782 |
| Docket Number | [2017 3203 P] |
| Court | High Court |
| Date | 21 December 2017 |
[2017] IEHC 782
THE HIGH COURT
COMMERCIAL
Costello J.
[2017 3203 P]
Environment, Construction & Planning - Practice & Procedures - O. 50, r. 4 of the Rules of the Superior Courts - Order for inspection - Scope of order
Facts: Following the order of the High Court for the inspection of the first named plaintiff's premises by agreement between the parties, the plaintiffs now sought an order to the effect of directing the defendants that the inspection of the subject site should be conducted in accordance with relevant section of the report prepared by the plaintiffs' expert. The defendants sought to inspect the site in accordance with the revised protocol prepared by firm namely, Marron Environmental on behalf of the defendants.
Ms. Justice Costello directed that the inspection of the subject site must be conducted in accordance with the proposal of Marron Environmental subject to any variations, restrictions or amendments, which the Environmental Protection Agency ('EPA') might in its independent discretion imposed if it authorised the carrying out the works. The Court granted liberty to the parties to apply to the Court in case the parties faced difficulty in implementation of the aforesaid order. The Court was satisfied that the inspection as proposed by the defendants' protocol considered the potential for environmental damage and addressed the concerns raised by the plaintiffs' experts. The Court refused to vary the earlier order of the High Court as in the opinion of the Court, it was not necessary to do so.
On the 15th May, 2017 McGovern J. made an order for the inspection of the first named plaintiff's property at Hollywood Great, Nags Head, The Naul, County Dublin (the site) by the defendants' experts on or before the 26th May, 2017. He also ordered that the relevant experts were to meet to agree a protocol for inspection and the taking of samples for testing. He granted the parties liberty to apply in the event that there was a difficulty in agreeing a protocol. The parties could not agree a protocol and the plaintiffs brought a motion dated 19th July, 2017 directing that inspection of the site be conducted in accordance with s.6.0 of the report prepared by the plaintiffs' expert, Golder Associates, (Golder) dated 4th July, 2017. The defendants say that this protocol in effect amounts to an impermissible limitation of the original order of McGovern J. and they seek to inspect the site in accordance with a revised protocol prepared by Marron Environmental on behalf of all three defendants dated the 2nd August, 2017.
The plaintiffs operate an inert landfill at the site which is licensed by the Environmental Protection Agency ( EPA) to receive inert waste. The plaintiffs contend that inter alia the first named defendant either directly or through the second or third named defendants transferred non-inert waste soil including hazardous waste soil from its site at Spencer Dock, Dublin 1 to the site (the impugned waste). The plaintiffs plead that the defendants produced documents which misdescribed the waste as non-hazardous soil which was suitable for disposal at an inert landfill. On this basis the plaintiffs accepted approximately 6000 tons of waste from the defendants in or about February 2017.
In March 2017 it became apparent that the impugned waste was not inert waste and in accordance with instructions from the EPA the impugned waste was quarantined and is currently isolated in the location in which it was deposited within the site in an area known as Cell 4.
The plaintiffs retained Golder to advise in relation to the remediation of the site. The plaintiffs and the EPA agreed a remediation plan following an extensive site investigation, sampling and analysis exercise which was approved by the EPA.
On the 6th April, 2017 the plaintiffs commenced these proceedings and the proceedings were entered into the commercial list on the 24th April, 2017. Prior to that, on the 18th and 19th of April, 2017, an inspection of the material at Cell 4 was undertaken by the plaintiffs at which experts instructed on behalf of the defendants attended. The defendants were provided with split samples of the material for the purposes of their own testing.
The order of McGovern J. of 15 May 2017 was made pursuant to O. 50 r.4 of the Rules of the Superior Courts. In James Elliot Construction Ltd v. Lagan & Ors [2015] IEHC 631 I summarised the principles applicable to an application under O. 50 r.4 as follows:
'(1) The Court may order that a party may take samples of the property of another party to proceedings which may be necessary or expedient for the purpose of obtaining full information or evidence;
(2) The power must be viewed in the context of a party's constitutional right of access to the courts;
(3) The Court must ensure that the litigant will have facilities to present his case to the Court. This includes all the advices and information which the litigant wishes to present to the courts, either in support of his own case, or to undermine that of his deponent;
(4) The right to an order for inspection or the taking of samples is not dependent upon the strength of the case of the party seeking the order;
(5) Inspection, or the ordering of the taking of samples, should be facilitated if it can be achieved while at the same time protecting the interests of the opposing party. The interests of an opposing party that a court takes into account are those relating to that party's rights as the owner or occupier of property;
(6) The proposed inspection or taking of samples must be shown to be necessary or expedient by reference to the issues in the case;
(7) The inspection or sampling ordered should be limited to that which the party seeking the order has shown to be necessary or expedient to his own case or his defence of his opponent's case.'
It is clear that the right of a party to inspect and take samples of or from the property of another party to proceedings and, by extension, the scope of such inspection or sampling, is not dependent upon the Court being satisfied as to the strength of the case of the party seeking the inspection. It is rather to secure that party's constitutional right of access to the courts or, as was said by Ms Justice Murphy in Ballymore Residential Ltd & Anor v. Roadstone Ltd & Ors [2017] IEHC 539, to ensure equality of arms between the litigants.
Mr Justice Murphy in Bula Ltd. v. Tara Mines Ltd (No. 1) [1987] I.R. 85 held that it is impracticable and undesirable to attempt to evaluate the strength or weaknesses of the cases of either the plaintiff or the defendants on the hearing of such a motion. In the case of Wymes v. Crowley [1987] IEHC 68 the geologists for the plaintiffs and the defendants disagreed as to whether the proposed inspection would cause damage to the ore body which was sought to be inspected. The Court indicated that it could not resolve the conflict but that inspection should be facilitated if it could be achieved whilst at the same time protecting the interests of the defendants.
In James Elliot Construction Ltd at para. 21 I held that unless it could be shown that the information sought to be obtained from the sample that the party wished to take from its opponents property could have no bearing on the case as pleaded, I was of the opinion that it was not for the court to decide on a motion pursuant to O. 50 r.4 to shut the party out from obtaining the information it sought. Similarly, in Charleton v. Kenny [2007] IEHC 308, Clarke J. (as he then was) controlled the process of obtaining the information sought by the plaintiff but he did not limit the information obtained once the plaintiff met the threshold for the granting of the order.
Mr. Justice McGovern ordered: -
'that an inspection of the first named plaintiff's property at Hollywood Great, Nags Head, The Naul, County Dublin by the defendant's experts to take place on or before Friday the 16th day of May, 2017 and that the reports following the inspection be completed and exchanged within one week thereafter (on or before Friday the 2nd day of June, 2017),
And…that the relevant experts do meet by Thursday of this week (the 18th day of May, 2017) to agree a protocol for the inspection and taking of samples for testing and if there is any difficulty in agreeing a protocol then the court doth grant the parties liberty to apply.'
It is thus clear that the scope of the order is for inspection of the entire site and it is not confined to the area where the impugned material is or was deposited and the sole matter for agreement between the parties was the protocol for the inspection and the taking of samples for testing from the site.
The plaintiffs say that the protocol should be confined to the inspection and testing of material from in or around Cell 4. This took place in August 2017, so in effect there should be no further inspection of the site. On the other hand the defendants argue that the protocol is to control the process whereby inspection and testing is to take place and it is not to limit the scope of the order. They urge strongly that the order is not confined to that portion of the site known as Cell 4 and the protocol should not limit them in a manner which is inconsistent with the terms of the order of the 15th May, 2017.
The inspection sought by the defendants was not confined to inspecting solely the...
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Ballymore Residential Ltd and Crosswinds Cottage Ltd v Roadstone Ltd, CRH Public Ltd Company, Murphy Concrete (Manufacturing) Ltd and William Miley Ltd
...by a court. 58 . More recently, in the case of Murphy Environmental Hollywood Ltd. v. Spencer Place Development Company Ltd. & Ors. [2017] IEHC 782, Costello J. was required to consider an order already made by McGovern J. for the inspection of the first named plaintiff's property, which ha......