Shell E and P Ireland Ltd v McGrath

• Jurisdiction: Ireland
• Judge: Ms. Justice Laffoy
• Judgment Date: 31 July 2006
• Neutral Citation: [2006] IEHC 268
• Court: High Court
• Date: 31 July 2006

[2006] IEHC 268

THE HIGH COURT

RECORD NO. 840 P/2005

SHELL E & P IRELAND LTD v MCGRATH & ORS

BETWEEN/

SHELL E AND P IRELAND LIMITED

PLAINTIFF

AND

PHILIP McGRATH, JAMES B. PHILBIN, WILLY CORDUFF, MONICA MULLER, BRÍD McGARRY, PETER SWEETMAN

DEFENDANTS

GAS ACT 1976 S40

EUROPEAN COMMUNITIES (INTERNAL MARKET IN NATURAL GAS) (COMPULSORY ACQUISITION) REGS 2001 SI 517/2001

ACQUISITION OF LAND (ASSESSMENT OF COMPENSATION) ACT 1919

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS

EUROPEAN COMMUNITIES ACT 1972

CONSTITUTION ART 15.2

EEC DIR 98/30

RSC O.60

CARLOW/KILKENNY RADIO LTD & ORS v BROADCASTING COMMISSION OF IRELAND 2003 3 IR 528 2004 1 ILRM 161

CONTROLLER OF PATENTS DESIGNS & TRADE MARKS & FITZPATRICK v IRELAND & AG 2001 4 IR 229

RYANAIR PLC v AER RIANTA CPT 2003 4 IR 264 2004 1 ILRM 241

RSC O.25 r1

RSC O.34 r2

PRACTICE AND PROCEDURE:

Discovery

Relevance of documents to issues - Whether documents necessary to fairly dispose of issue or to save costs - Challenge to constitutionality of compulsory purchase orders - Whether documents relevant to promulgation of statutory instrument relevant and/or necessary - Whether fishing expedition - Whether availability of documentation by another means dispensed with necessity for affidavit of discovery - Discovery ordered (2005/840P - Laffoy J -31/7/2006) [2006] IEHC 268 Shell E & P Ireland Ltd v McGrath

This judgment concerned: the first and third defendant’s motion for discovery against the plaintiff; the first and third defendant’s motion for discovery against the Minister for documentation relating to the promulgation of S.I. 517 of 2001; the second and fifth defendant’s motion for discovery against the plaintiff; and second and fifth defendant’s motion for discovery against the Minister.

Held by Laffoy J. in directing discovery that the documents were relevant and necessary to fairly dispose of the issues. Even if the issue of the validity of S.I. 517 were properly an issue in the proceedings a case had not been made out that discovery was necessary for fairly disposing of the issue.

Reporter: R.W.

1 Judgment of Ms. Justice Laffoy dated 31st July, 2006 .

A. Introduction

2 This judgment deals with the issues which were before the court on 9th and 10th May, 2006.

B. First and third defendants” motion for discovery against the plaintiff

3 The application of the first and third defendants against the plaintiff for discovery arises from a notice of motion which dates back to 5th September, 2005. While the affidavits which have been sworn on behalf of the plaintiff in response to the motion indicate that discovery will be made in respect of certain categories, an affidavit of discovery has not been sworn on behalf of the plaintiff, not by reason of any fault on the part of the plaintiff but because other issues, apart from discovery, came to the fore.

4 An affidavit of discovery in the prescribed form must be sworn now on behalf of the plaintiff and, in relation to any category of documents in respect of which it is contended the plaintiff does not have documents, that fact should be deposed to. I propose considering only the categories which I understand to be in issue, which are the following:

5 • Category 1(a): There is a dispute as to whether the quantitative risk assessment (QRA) in respect of the gas reception terminal at Bellinaboy is relevant. The plaintiff contends that it is not, whereas counsel for these defendants contends that it is because the issues are inseparable, which I understand to mean that issues concerning the onshore pipeline are inseparable from issues in relation to the onshore terminal. On the current state of the evidence, I cannot find that it is not relevant or that these defendants have not discharged the onus of proving that it is necessary for disposing fairly of the issues between these defendants and the plaintiff. Therefore, I direct discovery of it.

6 • Category 1(c): I did not understand these defendants to be pursuing this category. For the avoidance of doubt, I consider that the plaintiff cannot be directed to discover the Shell FRED Modelling package.

7 • Category 1(g): Having regard to what I will say at C below in relation to the particulars given on 4th October, 2005, I am not satisfied that the validity of the compulsory acquisition orders is properly in issue between these defendants and the plaintiff. Even if the plaintiff accepts that it is, for the reason set out at C, I am not ordering discovery of this category.

8 • Category1(h): These defendants are defending the allegations against them on the basis that the plaintiff does not have a consent, or a valid consent, under s. 40. Whether the plaintiff has a consent, or a valid consent, therefore is an issue at this juncture, as is the plaintiff's contention that these defendants are time barred from challenging the validity of the consent. As the latter issue has not been determined against the defendants and as the plaintiff no longer requires it to be determined as a preliminary issue, it seems to me that the plaintiff is entitled to the discovery sought under this category.

9 • Category 1(i): I do not accept that this category is a repetition of category (g) as asserted by the plaintiff. Having regard to the issues raised by these defendants in relation to the deviation strip and the waste water pipe and the umbilical conduits, I consider this category is relevant and necessary to fairly dispose of the issues and should be discovered.

10 • Category 1(j): I do not accept that the plaintiff's contention that this category is not relevant. Whether planning permission is necessary for the onshore pipeline is in issue as between these defendants and the plaintiff. Discovery is ordered of this category.

11 • Category 1(m): Counsel for these defendants contended that this category is germane to the issue as to whether there is, or will be, excessive use of the pipeline. Although it is noted that it is averred on behalf of the plaintiff that the application for the pipeline development incorporates the waste water pipe and the umbilical conduits, I consider that these defendants have shown that this category is relevant to the issues between these defendants and the plaintiff and necessary and discovery should be made.

12 • Category 1(p): I think the plaintiff's objection that this category goes far beyond the scope of what could reasonably be required by the defendants is well founded. Category 1(h), which has been allowed, covers documentation relevant to the s. 40 consent. This category is too general and non-specific and discovery is not ordered.

13 • Category 1(q): It was submitted by counsel for these defendants that this category is relevant to statutory easements which the plaintiff asserts. I do not accept that this is the case. Discovery is not ordered in relation to this category.

14 • Category 1(r): The plaintiff, in its reply, has put in issue the view of the Minister in relation to the works carried out by the plaintiff. In the circumstances this category is relevant and it is also necessary to fairly dispose of the proceedings and discovery should be made.

15 • Category 1(u): The plaintiff has put on affidavit a much more convincing argument than the response of the Minister to the second and fifth defendants, dealt with at E below, that the plan of development is not relevant. In particular it has been averred on its behalf that the plan of development did not entitle the plaintiff to carry out any work, that it was a precursor to subsequent applications for statutory consents including the s. 40 consent for the onshore pipeline. Notwithstanding that, I am not satisfied that one can infer that it is not relevant. Therefore, I am ordering discovery of it. If its relevance remains in issue the document will have to be looked at. The plaintiff also asserts that the document is commercially sensitive and confidential to the plaintiff. Even if this is the case, it is still discoverable unless the plaintiff can establish that it is privileged. Obviously, if the plaintiff can not establish privilege, a mechanism will have to be put in place to protect its commercial sensitivity.

16 Counsel for these defendants drew the court's attention to the fact that the plaintiff's solicitors, in their letter of 3rd October, 2005 furnishing a list of documents which the plaintiff is willing to disclose, intimated that there may be other documents which the plaintiff will rely on at the trial, which have not been sought or discovered. Provided the plaintiff makes proper discovery of the categories ordered to be discovered, it will be entitled so to do.

C. First and third defendants” motion for discovery against the Minister

17 By a notice of motion dated 13th April, 2006 the first and third defendants sought an order that the Minister make discovery of "all documentation relating to the promulgation of [the European Communities (Internal Market and Natural Gas) (Compulsory Acquisition) Regulations, 2001 ( S.I. No. 517 of 2001)], its purpose and effect to include all or any communications between [the plaintiff] and the Minister, his servants or agents relating to the Corrib Gas Field prior to the said promulgation".

18 In order to determine whether these defendants are entitled to such discovery it is necessary to consider how S.I. 517 comes into play in the case being advanced by these defendants on their defences and counterclaims. The following are the significant points:

19 • The Minister is not a defendant to these defendants” counterclaim.

20 • In paragraph 6 of their defences delivered on 5th August, 2005 these defendants denied that the compulsory acquisition orders in relation to their respective holdings had the effects contended for in the statement of claim and...