Murphy Environmental Hollywood Ltd v Spencer Place Development Company Ltd
| Jurisdiction | Ireland |
| Judge | Mr. Justice Noonan |
| Judgment Date | 01 April 2020 |
| Neutral Citation | [2020] IECA 78 |
| Date | 01 April 2020 |
| Court | Court of Appeal (Ireland) |
| Docket Number | Record Number: 2018/136 High Court Record Number: 2017/3203P |
AND
AND
[2020] IECA 78
Whelan J.
Noonan J.
Faherty J.
Record Number: 2018/136
2018/137
High Court Record Number: 2017/3203P
THE COURT OF APPEAL
Inspection – Testing – Implementation – Respondent seeking order for inspection and testing of site – Whether order for inspection made by High Court was unjustified, unnecessary and disproportionate
Facts: The appellants, Murphy Environmental Hollywood Ltd and Integrated Materials Solutions Ltd Partnership acting through its general partner Integrated Materials GP Ltd, issued plenary proceedings in the High Court on the 6th April, 2017, and served a statement of claim on the same date. The appellants sought relief in the form of declarations that the respondents Spencer Place Development Company Ltd, P.J. Hegarty and Sons Unlimited Company and Barnmore Demolition and Civil Engineering Ltd, were required to carry out remediation works or alternatively, a declaration that they were responsible for the costs of those works. A mandatory injunction was sought compelling the respondents to carry out remediation works or in the alternative, an order requiring them to pay the costs of same. Damages for negligence, breach of duty (including statutory duty), breach of contract, negligent misstatement, misrepresentation, trespass and nuisance were also claimed together with an indemnity against any future losses that might arise in connection with any works necessary to deal with the consequences of the alleged wrongful acts of the respondents. The third respondent brought a motion before the High Court seeking an order pursuant to O. 50, r. 1 of the Rules of the Superior Courts for inspection and testing of the landfill property and the waste material the subject matter of the proceedings. The motion came on for hearing before the High Court (McGovern J) on the 15th May, 2017 resulting in the order sought being granted by the court. On the 22nd June, 2017, the experts then retained by the respondents, RPS, produced a suggested protocol for the implementation of the inspection and testing of the landfill site. The appellants’ consultants, Golder Associates, produced a separate protocol on the 4th July, 2017. This protocol appeared to propose that the inspection and testing of the site should be confined to the impugned waste contained in Cell 4 only. Golder argued that there was no scientific case for any testing beyond that. Because agreement could not be reached on the appropriate protocol, the appellants issued a motion on the 19th July, 2017 seeking an order directing that inspection of the site be conducted in accordance with the Golder report and in particular section 6.0 thereof. An extensive exchange of affidavits followed, which included reference to a new protocol proposed on behalf of the respondents by Marron Environmental on the 2nd August, 2017. As with the earlier proposed RPS protocol, the Marron protocol proposed taking soil samples outside the impugned material in Cell 4 but on a less intrusive basis than had been proposed by RPS. The appellants’ motion was heard over two days before Costello J who delivered judgment on the 21st December, 2017. The trial judge held that the inspection to be carried out according to the Marron Protocol was in accordance with the principles set out in James Elliot Construction Ltd v Lagan & Ors. [2015] IEHC 631 and took account of the concerns raised by the appellants’ experts. She considered this to be a least intrusive inspection and sampling of the appellants’ site which would satisfy the respondents’ requirements. The appellants appealed to the Court of Appeal, contending that the order for inspection made by the High Court was unjustified, unnecessary and disproportionate.
Held by Noonan J that the trial judge acted well within her discretion in making the order under appeal and that the appellants had not established that there was any basis for the Court of Appeal to interfere with the exercise of that discretion or that a real injustice would arise if the order was not set aside.
Noonan J held that these appeals would be dismissed.
Appeal dismissed.
The appellants own and operate a landfill site at Hollywood Great. Nags Head. The Naul, County Dublin comprising some 54.4 hectares. The first respondent is the owner and developer of a site at Spencer Dock in Dublin. The second respondent is the building contractor for the development and the third respondent is a demolition contractor engaged on the development.
The appellants allege that in February 2017. the respondents delivered to the landfill site some 6,000 tons of waste from the Spencer Dock development which was deposited into what is known as Cell 4 on the landfill. The appellants allege that the respondents represented in writing to them that the waste was inert. They plead further that during the following month, March 2017, the appellants discovered that the Spencer Dock waste included contaminated and hazardous material in breach of the written representations of the respondents and also in breach of the operating licence issued to the appellants by the Environmental Protection Agency.
Arising from the foregoing, the appellants issued plenary proceedings in the High Court on the 6th April, 2017 and served a statement of claim on the same date. The appellants seek relief in the form of declarations that the respondents are required to carry out remediation works arising from the foregoing or alternatively, a declaration that they are responsible for the cost of those works. A mandatory injunction is sought compelling the respondents to carry out remediation works or in the alternative, an order requiring them to pay the cost of same.
Damages for negligence, breach of duty (including statutory duty), breach of contract, negligent misstatement, misrepresentation, trespass and nuisance are also claimed together with an indemnity against any future losses that might arise in connection with any works necessary to deal with the consequences of the alleged wrongful acts of the respondents. Separately from the foregoing, orders were sought in the statement of claim pursuant to sections 57 and 58 of the Waste Management Acts, 1996 – 2011 requiring the carrying out of such measures as may be specified by the court to remediate the damage caused. The latter claims were objected to by the respondents on the basis that they should have been brought by separate proceedings under the Waste Management Acts and as a result, those claims have now been dropped from the plenary proceedings.
Following the exchange of notices for particulars and replies thereto, the third respondent brought a motion before the High Court seeking an order pursuant to O. 50, r. 4 of the Rules of the Superior Courts for inspection and testing of the landfill property and the waste material the subject matter of the proceedings. The motion came on for hearing before the High Court (McGovern J.) on the 15th May, 2017 resulting in the order sought being granted by the court. Given the controversy that now arises between the parties as to the meaning and effect of this order, it is appropriate to recite its terms in full: -
“Upon motion of counsel for the third named defendant pursuant to notice of motion dated the 10th day of May 2017 for the following relief:
1. An order pursuant to the provisions of O. 50. r. 4 of the Rules of the Superior Courts directing the plaintiffs and/or each or either of them to allow and facilitate access to the first named plaintiff's property at Hollywood Great. Nags Head, The Naul, County Dublin for the purpose of carrying out the inspection and testing of the landfill property at Hollywood Great, Nags Head, The Naul, County Dublin and the waste material the subject matter of the proceedings herein and/or the taking of relevant samples thereof such as may be necessary or expedient for the purposes of obtaining full information or evidence in relation to the plaintiff's claim the subject matter hereof by the defendants
2. Such further or other orders as this honourable court shall deem meet and just
3. An order providing for the costs of this application
And on reading said notice of motion the affidavit of Patrick O'Sullivan filed on the 10th day of May 2017 the affidavit of Deirdre Nagle filed on the 12th day of May 2017 the replying affidavit of Ann Henry filed on the 15th day of May 2017 the exhibits to said affidavits the pleadings and proceedings had herein and relevant inter partes correspondence and on hearing said counsel and counsel for the plaintiffs and counsel for the first named defendant and counsel for the second named defendant
THE COURT DOTH DIRECT that an inspection of the first named plaintiff's property at Hollywood Great, Nags Head, The Naul, County Dublin by the Defendants' experts do take place on or before Friday the 26th 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 THE COURT DOTH DIRECT that the relevant experts do meet by Thursday of this week (the 18th day of May 2017) to agree a protocol for inspection and the taking of samples for testing and if there is any difficulty in agreeing a protocol then the courts doth grant the parties liberty to apply and IT IS ORDERED that the costs of this motion and order be costs in the cause”
The order was perfected on the 12th June, 2017. Two days after the making of this...
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