Shell E & P Ireland Ltd v McGrath

• Jurisdiction: Ireland
• Judge: Miss Justice Laffoy
• Judgment Date: 04 March 2010
• Neutral Citation: [2013] IESC 1,[2010] IEHC 363
• Court: High Court
• Date: 04 March 2010

Shell E & P Ireland Ltd v McGrath & Ors

BETWEEN

SHELL E & P IRELAND LIMITED

PLAINITFF

AND

PHILIP MCGRATH, JAMES B. PHILBIN, WILLIE CORDUFF, MONICA MULLER, BRID McGARRY AND PETER SWEETMAN

DEFENDANTS

AND

THE MINISTER FOR COMMUNICATIONS, MARINE AND NATURAL RESOURCES, IRELAND AND THE ATTORNEY GENERAL

DEFENDANTS TO COUNTERCLAIM

[2010] IEHC 363

[No. 840P/2005]

THE HIGH COURT

PRACTICE & PROCEDURE

Plenary action

Declaratory relief - Judicial review - Certiorari - Limitation period - Whether reliefs sought by plenary action within scope of judicial review - Whether time limit applied by analogy to reliefs sought by plenary action - Whether good reason for extending time limit - Consent and compulsory purchase orders - Collateral challenge - Constitutionality of legislation - Whether pleas constituted collateral challenge to making of impugned orders - Locus standi - Whether time limit imposed by rule of court could curtail jurisdiction regarding challenge to constitutionality of legislation - O'Donnell v Dun Laoghaire Corporation [1991] ILRM 301 distinguished; Wandsworth LBC v Winder [1985] 1 AC 461 followed; Blanchfield v Hartnett [2002] 3 IR 207 considered; De Róiste v Minister for Defence [2001] 1 IR 190 applied; Cahill v Sutton [1980] IR 269 considered; AHP Manufacturing BV v Director of Public Prosecutions [2008] IEHC 144, [2008] 2 ILRM 344 distinguished - Rules of the Superior Courts 1986 (SI 15/1986), O 84 - Chancery (Ireland) Act 1867 (30 & 31 Vict, c 44), s 155 - Supreme Court of Judicature (Ireland) Act 1877 (40 & 41 Vict, c 57), s 28 - Gas Act 1976 (No 30), ss 32 and 40 - Gas (Interim) (Regulation) Act 2002 (No 10), s 23 - Constitution of Ireland 1937, Articles 34.3.2 , 40.3 and 43.2 - Held issue not time barred (2005/840P - Laffoy J - 4/3/2010) [2010] IEHC 363

Shell E & P Ireland Ltd v McGrath

SHELL E & P IRL LTD v MCGRATH UNREP LAFFOY 23.3.2006 2006/52/11051 2006 IEHC 99

SHELL E & P IRL LTD v MCGRATH UNREP LAFFOY 31.7.2006 2006/52/11109 2006 IEHC 268

SHELL E & P IRL LTD v MCGRATH 2007 4 IR 277 2007 2 ILRM 501 2007 55 11859 2007 IEHC 144

GAS ACT 1976 S40

GAS ACT 1976 S32

RSC O.36 r9

RSC O.84 r21

STATUTE OF LIMITATIONS ACT 1957

RSC O.84 PART V

RSC O.84 r18(1)

ABENGLEN PROPERTIES, STATE v DUBLIN CORP 1984 IR 381

RSC O.84 R18(2)

CHANCERY IRELAND ACT 1867 S155

O'DONNELL v DUNLAOGHAIRE CORP 1991 ILRM 301

RSC O.19 r29

JUDICATURE IRELAND ACT 1877 S28(8)

MCGRATH CIVIL PROCEDURE IN SUPERIOR COURTS 2ED 27-15

RSC O.84 r22(1)

GAS ACT 1976 S32(1A)

GAS (INTERIM) REG ACT 2002 S23

CONSTITUTION ART 40.3.1

CONSTITUTION ART 40.3.2

CONSTITUTION ART 43.2.1

CONSTITUTION ART 43.2.2

CONSTITUTION ART 40.3

EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003 S5

A H P MANUFACTURING BV v DPP & ORS 2008 2 ILRM 344

RSC O.84 r21(1)

CONSTITUTION ART 34.3.2

O'REILLY v MACKMAN 1983 2 AC 237

RSC O.53 (UK)

SUPREME COURT ACT 1981 S31 (UK)

RSC O.53 r4(1) (UK)

RSC O.84 r21(1)

WANDSWORTH LBC v WINDER 1985 1 AC 461

DE ROISTE v MIN FOR DEFENCE 2001 1 IR 190

SLATTERYS LTD v CMSR OF VALUATION 2001 4 IR 91

DEKRA EIREANN TEO v MIN FOR ENVIRONMENT 2003 2 IR 270

RSC O.84A r4

BLANCHFIELD v HARTNETT 2002 3 IR 207

FUTAC SERVICES LTD & REEFERCARE LTD v DUBLIN CITY COUCIL & DUBLIN PORT CO LTD UNREP HIGH SMYTH J 24.6.2003 2003/23/5269

MCGRATH v MIN FOR DEFENCE 2004 2 IR 386

SMART MOBILE LTD v COMMISSION FOR COMMUNICATION REG UNREP KELLY 13.3.2006 2006/53/11394 2006 IEHC 82

WADE ON ADMINISTRATIVE LAW 9ED 282

NOONAN SERVICES LTD v LABOUR COURT UNREP KEARNS 25.2.2004 2004/36/8316 2004 IEHC 42

ENVIRONMENTAL PROTECTION AGENCY ACT 1992 S87(1)

WHITE v DUBLIN CO COUNCIL 2004 1 IR 545

ENVIRONMENTAL PROTECTION AGENCY ACT 1992 S87(8)

CONSTITUTION ART 15.2.1

CAHILL v SUTTON 1980 IR 269

STATUTE OF LIMITATIONS 1957 S11(2)(B)

HARRINGTON v BORD PLEANALA 2006 1 IR 388

CONSTITUTION ART 34.3.2

1 Judgment of Miss Justice Laffoy delivered on the 4th day of March, 2010.

1. The background to the application

2 2 1.1 The history of these proceedings is outlined in judgments which I delivered previously, namely:

3 (a) on 23 ^rd March, 2006 ( [2006] IEHC 99; [2006] 2 ILRM 299),

4 (b) on 31 ^st July, 2006 ( [2006] IEHC 268), and

5 (c) on 18 ^th April, 2007 ( [2007] IEHC 144; [2007] 41.R. 277; and [2007] 2 ILRM 501).

6 Accordingly, I propose in this judgment to outline only what I consider to be the essential elements of the factual background to this application, which involves the defendants to the counterclaim of the second and fifth defendants (the State parties) as the moving party, supported by the plaintiff, and the second and fifth defendants (referred to collectively as "the defendants") as the respondents.

7 3 1.2 The essential elements of the factual background are as follows:-

8 (a) In 2002, on the application of the plaintiff and in the context of the proposed development by the plaintiff of the Corrib Gas Field, the predecessor of the Minister for Communications, Marine and Natural Resources (the Minister) made the following orders pursuant to the Gas Act 1976 (the Act of 1976), as amended:

9 (i) on 15 ^th April, 2002, a pipeline consent pursuant to s. 40 of the Act of 1976 (the consent) for the proposed construction of a gas pipeline, offshore and onshore, to connect the sea-wells of the Corrib Gas Field with an onshore gas terminal, which the plaintiff proposed to construct in North Mayo; and

10 (ii) on 3 ^rd May, 2002 and on 5 ^th June, 2002, compulsory acquisition orders pursuant to s. 32 of the Act of 1976, as amended, in respect of ten plots owned by individuals, including the second defendant.

11 (b) On 22 ^nd October, 2004, An Bord Pleanála granted planning permission for the onshore terminal.

12 (c) Following the grant of planning permission, the plaintiff notified the relevant landowners of its intention to exercise its rights of entry on the plots of land which were the subject of the compulsory acquisition orders pursuant to the Act of 1976 after 10 ^th January, 2005.

13 (d) These proceedings, which were initiated by plenary summons which issued on 4 ^th March, 2005, were the plaintiff's response to what were alleged to be wrongful actions on the part of the defendants in January, 2005 and on 1 ^st March, 2005, in allegedly obstructing or interfering with the plaintiff's entry on those plots and the carrying out of works thereon.

14 (e) On 4 ^th November, 2005, the solicitors for the defendants, who had come on record on 28 ^th September, 2005, delivered proposed amended defences and counterclaims to the plaintiff's solicitors in which it was proposed to join the State parties as defendants to the counterclaim. The Chief State Solicitor was subsequently served with the proposed defences and counterclaims, which raised a wide range of public law and constitutional issues, which are outlined in my judgment of 23 ^rd March, 2006. In that judgment I dealt with an application on behalf of the defendants for liberty to deliver the amended defences and counterclaims. I acceded to the application,

15 (f) By letter dated 25 ^th September, 2006 from the plaintiff's solicitors to the three firms of solicitors on record for all of the six parties who were defendants in these proceedings at the time (including the defendants' solicitors), the plaintiff notified all of the defendants that it intended to discontinue its claims against all of the defendants, either by agreement or by leave of the Court, in the changed circumstances which are outlined in my judgment of 18 ^th April, 2007, namely, that the plaintiff intended to modify the onshore pipeline route in consultation with the local communities. That judgment dealt with an application by the plaintiff for leave to discontinue the proceedings against the defendants. The application was acceded to but (i) subject to the condition that the plaintiff pay the defendants' costs of the plaintiff's claim, save particular costs which were specified, and (ii) on the basis of an undertaking which had been given by the plaintiff, which is recorded in the order of the Court dated 23 ^rd April, 2007 perfected on foot of the judgment of 18 ^th April, 2007. That was an undertaking by the plaintiff not to rely on the compulsory acquisition orders and, insofar as is necessary, to take the steps required to cancel the effect of the orders off the title of the defendants remaining in the proceedings. The position of the plaintiff in relation to the consent, as recorded in the judgment of 18 ^th April, 2007, was that the plaintiff was continuing to rely on it pending the submission of an application for a new consent under the Act of 1976 once the modified pipeline route had been selected, because the consent also regulated the offshore section of the import gas pipeline.

16 (g) Following the making of the order of 23 ^rd April, 2007, as regards the parties to this application, the position was that there remained extant the counterclaim of the defendants against the plaintiff and the State parties and the defence thereto by the plaintiff and the State parties.

17 (h) In my judgment of 18 ^th April, 2007, I also dealt with a motion brought by the State parties seeking directions as to the mode of trial of the proceedings, in which the State parties, essentially, were seeking a modular approach. Arising out of that aspect of the judgment, it was provided in the order of 23 ^rd April, 2007 that, pursuant to Order 36, rule 9 of the Rules of the Superior Courts 1986 (the Rules), the following public law issues be tried as between the defendants, as claimants, and the State parties, as respondents, before any other issues should be tried, namely:-

18 (i) all issues raised by the defendants in relation to the validity of the consent and the compulsory acquisition orders, and

19 (ii) all issues as to the...