Shannon Preservation & Development Company Ltd v Electricity Supply Board (Esb)

• Jurisdiction: Ireland
• Judge: O'Sullivan J
• Judgment Date: 21 July 2000
• Neutral Citation: [2000] IEHC 136
• Docket Number: No. 12010p/1999
• Court: High Court
• Date: 21 July 2000

[2000] IEHC 136

THE HIGH COURT

No. 12010p/1999

SHANNON PRESERVATION & DEVELOPMENT CO LTD v. ELECTRICITY SUPPLY BOARD (ESB)

BETWEEN

SHANNON PRESERVATION AND DEVELOPMENT COMPANYLIMITED

PLAINTIFF

AND

ELECTRICITY SUPPLY BOARD

DEFENDANT

Citations:

RSC O.19 r28

RSC O.29 r1

COMPANIES ACT 1963 S390

SHANNON FISHERIES ACT 1935 S8

SHANNON FISHERIES ACT 1938 S5

MALAHIDE COMMUNITY COUNCIL V FINGAL CO COUNCIL 1997 3 IR 383

LANCEFORT V BORD PLEANALA 1999 2 IR 270

BLESSINGTON HERITAGE TRUST V WICKLOW CO COUNCIL 1999 4 IR 571

WICKLOW HERITAGE TRUST V WICKLOW CO COUNCIL UNREP MCGUINNESS 5.2.1998 2000/17/6683

R V INSPECTOR OF POLLUTION EX-PARTE GREENPEACE (N0 2) 1994 4 AER 329

Synopsis:

Practice and Procedure

Practice and procedure; striking out; security for costs; plaintiff seeking a declaration that defendant failed to perform its statutory duty in managing, conducting and preserving the Shannon fisheries; whether plaintiff's claim discloses a reasonable cause of action; whether claim is frivolous or vexatious; whether plaintiff company has locus standi.

Held: Plaintiff's claim not dismissed; plaintiff directed to furnish security for costs; all further proceedings stayed until security furnished.

Shannon Preservation and Development Company Limited v. Electricity Supply Board - High Court: O'Sullivan J. - 21/07/2000

The plaintiff company, comprising of anglers, sought to sue the defendant in relation to the management of fisheries on the river Shannon. The defendant sought to have the plaintiff's claim struck out. The defendant also disputed the locus standi of the plaintiff. O'Sullivan J held the plaintiff's claim was not vexatious. The individuals behind the plaintiff company had a long history of environmental interest in the claim being pursued. The plaintiff accordingly had locus standi. The plaintiff would however be required to furnish security for costs and proceedings would be stayed until the said security was furnished.

1 Judgment of O'Sullivan Jdelivered the 21st day of July, 2000.

2 The Defendant has brought a motion seeking to have the Plaintiff's claim struck out on the basis that it discloses no reasonable cause of action or that the pleadings are frivolous and/or vexatious or alternatively stayed on these grounds and in doing so relies both on Order 19, Rule 28 of the Rules of the Superior Courts and on the inherent jurisdiction of this Court. In the alternative, an Order is sought requiring the Plaintiff to furnish security for costs and in this regard reliance is placed on Section 390 of the Companies Act, 1963and also on Order 29, Rule 1 of the Rules of the Superior Courts.

3 The Plaintiff is a company limited by guarantee. There are six subscribers to the Memorandum of Association each of whom is said to represent an unincorporated fishing club or association. The principle object of the company is, where relevant:-

"To engage in the development, management and care of commercial and recreational fishing and angling on the River Shannon, its lakes and tributaries and to represent interested members of the adjacent communities in the preservation, protection and improvement of the amenities and environment in the locality and to take such legal or other actions as may be considered necessary or desirable to promote such interests..."

4 The Defendant is the national electricity supplier so established by statute. By Section 8 of the Shannon Fisheries Act, 1935it is provided:-

"In addition, but subject and without prejudice to, the primary function of maintaining, working, and developing the Shannon hydroelectric works under and in pursuance of the Act of 1927 as amended or extended by subsequent legislation, the Board shall have and perform the duty of managing, conducting, and preserving the Shannon fisheries under and in accordance with this Act."

5 By the same Act the Defendant was given the option of acquiring fishery rights in the Shannon River and by Section 5 of the Shannon Fisheries Act, 1938 "....every fishery and every fishing right in and over the waters of the River Shannon above the weir known as CorballyMills...." were vested in the Defendant. I have been told that there has been no challenge to this section since but, notwithstanding this, Counsel for the Plaintiff has advanced an argument to the effect that the Plaintiff or its members have a prospect in the future of acquiring some proprietorial rights in fisheries on the Shannon River having regard to the purview of Section 5 of the Act of1938.

6 The main case made by the Plaintiff is that the Defendant has failed to perform its duty of managing, conducting and (especially) preserving the Shannon fisheries and an affidavit has been sworn deposing to the general decline in the quality and pollution of the waters in the river, the reduction in the numbers of fish and in the case of some species their loss. The Defendant denies this but submits that if it has occurred it has not been caused by a breach of its duty as alleged.

7 In the case, therefore, there will be issues of fact relating to the depletion and/or loss of certain species, the cause of such loss or depletion and there will be an issue of law as to the relationship between the duty of the Board to manage, conduct and preserve the Shannon fisheries and its "primary function" of maintaining, working and developing the Shannon hydroelectricworks.

8 In this motion the Defendant has submitted forcefully that the Plaintiff company does not have locus standi to maintain this action. I will return to this issue shortly.

9 The Defendant has further submitted that the pleadings disclose no cause of action and that they are frivolous and vexatious.

10 Leaving aside the question of locus standi, it seems to me without disrespect to these submissions that the Plaintiff's claim seeking a declaration that the Defendant is in breach of its statutory duty as aforesaid and for appropriate injunctive relief does indeed disclose a cause of action and in light of the evidence adduced on affidavit to which I have alluded such a claim could not said to be frivolous or vexatious otherwise, of course, than in the context of the locus standi point itself.

11 It seems to me therefore that the first part of the Defendant's motion (that is other than the alternative claim for security for costs) must stand or fall on the locus standi point.

Locus Standi

12 It is fair to say that the view expressed obiter by Lynch J in Malahide Community Council -v- Fingal CountyCouncil, ( 1997:3:IR:3...