Shell E & P Ireland Ltd v McGrath and Others

• Jurisdiction: Ireland
• Judge: Miss Justice Laffoy
• Judgment Date: 23 March 2006
• Neutral Citation: [2006] IEHC 99
• Docket Number: No. 840 P/2005
• Court: High Court
• Date: 23 March 2006

SHELL E & P IRELAND LTD v MCGRATH & ORS

BETWEEN/

SHELL E & P IRELAND LIMITED

PLAINTIFF

AND

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

DEFENDANTS

[2006] IEHC 99

No. 840 P/2005

THE HIGH COURT

PRACTICE AND PROCEDURE

Pleadings

Amendment - Defence and counterclaim - Application for liberty to deliver amended defences and counterclaims - Whether amendments sought necessary for purpose of determining real questions of controversy - Whether leave to amend pleadings should be granted - Croke v Waterford Crystal Ltd [2004] IESC 97, [2005] 2 IR 383; O'Donnell v Dun Laoghaire Corporation [1991] ILRM 3001 considered - Rules of the Superior Courts 1986 (SI 15/1986), O 19, r 27; O 25, r 1 and O 28, r 1 -Liberty to amend defence and counterclaim granted and preliminary issue directed (2005/840P - Laffoy J - 23/3/2006) [2006] IEHC 99

GAS ACT 1976 S40

GAS ACT 1976 S32

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

EUROPEAN COMMUNITIES ACT 1972

ACQUISITION OF LAND (ASSESSMENT OF COMPENSATION) ACT 1919

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS

RSC O.60

CONSTITUTION ART 40

RSC O.84

PLANNING AND DEVELOPMENT ACT 2000 S160

ACQUISITION OF LAND (ALLOTTMENTS) ACT 1926 S40

EEC DIR 85/337

RSC O.28 r1

RSC O.15

CONSTITUTION ART 40.3.1

CONSTITUTION ART 40.3.2

CONSTITUTION ART 43.2.1

CONSTITUTION ART 43.2.2

CONSTITUTION ART 43

EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003 S5

RSC O.28 r2

CROKE v WATERFORD CRYSTAL LTD 2005 1 ILRM 321

O'LEARY v MIN FOR TRANSPORT 2001 1 ILRM 132

DPP v CORBETT 1992 ILRM 674

RSC O.21 r10

O'CONNOR v ANDERSON 1880 14 ILTR 14

KELLY IRISH CONSTITUTION 4ED 833

O'DONNELL v DUN LAOGHAIRE CORPORATION 1991 ILRM 3001

RSC O.84 r21

WANDSWORTH LONDON BOROUGH COUNCIL v WINDER 1985 1 AC 461

PAWLOWSKI (COLLECTOR OF TAXES) v DUNNINGTON 1999 STC 550

HOGAN & MORGAN ADMINISTRATIVE LAW IN IRELAND 3ED 797

RSC O.19 r27

RSC O.25 r1

Miss Justice Laffoy

1 In order to put the two applications which are dealt with in this judgment in their proper context, it is necessary to identify in a general way the issues which arise in the proceedings, having regard to the current state of the pleadings. I hope to do so in a neutral manner.

2 The proceedings, which were initiated by a plenary summons which issued on 4th March, 2005, arise out of the proposed construction of an onshore gas pipeline, (the pipeline) to connect the sub-sea wells of the Corrib Gas Field with an on-shore gas terminal which the plaintiff proposes to construct in north Mayo. In its statement of claim delivered on 18th April, 2005, the plaintiff pleads the following matters:

3 • That on 15th April, 2002, the predecessor of the Minister for Communications, Marine and Natural Resources (the Minister) granted the plaintiff a pipeline consent pursuant to s. 40 of the Gas Act,1976 (the Act of 1976), as amended, for the construction of the pipeline.

4 • That on 3rd May, 2002 and 5th June, 2002, the Minister granted compulsory acquisition orders pursuant to s. 32 of the Act of 1976, as amended, in respect of ten plots owned by individuals (including the first defendant and the second defendant) and one plot of commonage, on foot of an application made by the plaintiff on 23rd November, 2001.

5 • That by letters dated 7th May, 2002 and 6th June, 2002, each of the landowners was notified of the making of the relevant compulsory acquisition order and served with a notice of entry pursuant to the Act of 1976.

6 • That on 22nd October, 2004, An Bord Pleanála granted planning permission for the on-shore terminal.

7 • That by letter dated 6th December, 2004, the plaintiff notified the relevant landowners of the intention of the plaintiff to exercise its right of entry on or after 10th January, 2005.

8 Insofar as is relevant for present purposes, the wrongs alleged by the plaintiff against the defendants are that they obstructed or interfered with the plaintiff's entry on certain of the plots the subject of the compulsory acquisition orders and prevented the plaintiff from carrying out works thereon, which it is alleged amounted to trespass, and that they interfered with the use and enjoyment by the plaintiff of its interest in those plots, thereby creating a nuisance to the plaintiff. The remedies sought by the plaintiff include perpetual injunctions to restrain obstruction and interference with the plaintiff's entry of the plots, trespass and nuisance and also damages for trespass and nuisance. The plaintiff's entitlement to do what they allege they were prevented from doing and believe they will continue to be prevented from doing, as pleaded, is based expressly on the pipeline consent and the compulsory acquisition orders, and implicitly on the planning permission.

9 The current position is that the six defendants are represented by three legal teams: the first and third defendants by one legal team; the second and fifth defendants by another legal team; and the fourth and sixth defendants by the third legal team.

10 As regards the first and third defendants, the solicitors currently on record for them delivered an amended defence and counterclaim for each on 5th August, 2005, pursuant to an order of this Court made on 25th July, 2005. On 4th October, 2005 their solicitors delivered further particulars of their defence and counterclaim. By way of general observation, these defendants deny wrongdoing on their part, and allege wrongdoing on the part of the plaintiff in respect of which they seek injunctions, a declaration and damages. The elements of their pleadings which are relevant for present purposes are:

11 • A denial that the Minister gave consent, or a valid consent, under s. 40 of the Act of 1976.

12 • A denial that the compulsory acquisition orders have the effect contended for by the plaintiff.

13 • An assertion, in the particulars delivered on 4th October, 2005, that the compulsory acquisition orders made in respect of the lands of these defendants are void and of no effect for the reasons stipulated, which are premised on the assertion that European Communities (Internal Market in Natural Gas) (Compulsory Acquisition) Regulations, 2001 ( S.I. No. 517 of 2001) (the 2001 Regulations) isultra vires the powers of the Minister and is null and void and is of no effect having regard to the provisions of the European Communities Act, 1972 and the Constitution.

14 • An allegation that certain provisions applicable for compensating these defendants contained in the Acquisition of Lands (Assessment of Compensation) Act, 1919 (the Act of 1919), as amended, together with the Act of 1976, as amended, are repugnant to the Constitution and incompatible with the European Convention on Human Rights (the Convention), in respect of which allegation notice has been served on the Attorney General pursuant to Order 60 of the Rules of the Superior Courts, 1986 (the Rules).

15 • Allegations that, if authorised, the pipeline exposes these defendants to such risk to their personal safety, bodily integrity and damage to their property as to constitute a breach of their constitutional rights and, in particular, their rights under Article 40 of the Constitution.

16 • An allegation that there is no planning permission for the proposed pipeline.

17 • An oblique attack on the planning permission granted on 22nd October, 2004.

18 The plaintiff delivered amended replies and defences to the counterclaims of the first and third defendants on 24th August, 2005. In relation to the elements of the defences and counterclaims which I have just outlined, the plaintiff:

19 • Reiterated reliance on the consent granted by the Minister on 15th April, 2002 and asserted that the first and third defendants cannot challenge or impugn the validity of that consent, having failed to do so by judicial review proceedings within the time limits provided for in Order 84 of the Rules.

20 • Asserted that, insofar as the first and third defendants may attempt to do so, they cannot challenge or impugn the validity of the compulsory acquisition orders relied on by the plaintiffs, having failed to do so by judicial review within the Order 84 time limits.

21 • Denied that the Act of 1919 is repugnant to the Constitution or incompatible with the Convention.

22 • Admitted that the proposed pipeline does not have planning permission, but asserted that it constitutes an exempted development.

23 • Joined issue on the oblique attack on the planning permission granted on 22nd October, 2004.

24 • To the extent that the first and third defendants” attempt to do so, asserted that they cannot seek relief under s. 160 of the Planning and Development Act,2000 (the Act of 2000) and any claim for relief under that section is inadmissible.

25 • Denied that the implementation of its proposal in relation to the pipeline would constitute a breach of the constitutional rights of the first and third defendants.

26 • Denied that the Act of 1919 is repugnant to the Constitution or incompatible with the Convention.

27 • Asserted that the first and third defendants do not havelocus standi to challenge the compensation provisions contained in the Act of 1919 and asserted that any such challenge is premature and hypothetical on the facts.

28 The fourth and sixth defendants, in person, delivered their respective defences and counterclaims on 9th June, 2005. They are now represented by solicitor and counsel in the proceedings, who stand over those pleadings. These defendants deny wrongdoing and allege wrongdoing on the part of the plaintiffs and counterclaim for injunctions, a declaration and damages. The elements of their defences and counterclaims which are relevant for present purposes are:

29 • A denial that the Minister gave...