Shell E & P Ireland Ltd (plaintiff) v McGrath and Others

JurisdictionIreland
CourtHigh Court
JudgeMiss Justice Laffoy
Judgment Date18 April 2007
Neutral Citation[2007] IEHC 144
Docket Number[2005 No. 840P]
Date18 April 2007

[2007] IEHC 144

THE HIGH COURT

[No. 840P/2005]
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, BRID McGARRY, PETER SWEETMAN
DEFENDANTS

and

THE MINISTER FOR COMMUNICATIONS, MARINE AND NATURAL RESOURCES, IRELAND AND THE ATTORNEY GENERAL
DEFENDANTS TO THE COUNTERCLAIM
Abstract:

Practice and procedure - Discontinuance - Costs - Discovery - Order 26, Rule 1 - Whether the plaintiff ought to be permitted to discontinue its claim against the defendants and consequently what order as to costs should be made.

These proceedings arose out of the plaintiff's asserted entitlement to enter on certain lands and carry out works thereon in relation to the construction of an onshore gas pipeline pursuant to a pipeline consent granted by virtue of section 40 of the Gas Act, 1976 and compulsory acquisition orders granted by the Minister for Communications, Marine and Natural Resources. In the substantive proceedings the plaintiff sought perpetual injunctions against the defendants arising out of alleged obstruction and nuisance by the defendants and damages for nuisance and trespass. In these proceedings before the court the plaintiff sought by way of notice of motion, the leave of the court to discontinue its proceedings against certain of the defendants. The plaintiff submitted that if the proceedings were discontinued then no order as to the costs of the proceedings should be made or in the alternative the costs of the proceedings should be reserved to the trial of the defendants' counterclaims. The defendants to the counterclaim (the State parties) sought directions as to the mode of trial and the second and fifth named defendants sought an order striking out the plaintiff's action and the defence to their counterclaims for failure to comply with an order for discovery and an order striking out the defence of the State parties to the counterclaim for failure to comply with that order for discovery also. The plaintiff and the State parties sought an extension of time in order to comply with the discovery order.

Held by Laffoy J. : That subject to certain terms the plaintiff ought to be allowed discontinue its claims against the relevant defendants. The court should not enter upon a consideration of the merits of the issues raised either on the plaintiff's claim or on the counterclaims. In the circumstances of this case, the court should not depart from the normal rule that the discontinuing plaintiff should pay the defendants' costs up to the date of discontinuance. Those costs should be taxed, in default of agreement on a party and party basis. The issues raised in relation to the validity of the consent under section 40 of the 1976 Act and the compulsory acquisition orders and all issues as to the justiciability of issues raised by the defendants as to the constitutionality of any Act impugned by the defendants should be tried before any other issues. Finally, having regard to the reasonable excuses advanced by the plaintiff and the State parties for their failure to make discovery within the time prescribed, the time within which to comply with such orders will be extended for a period of 3 weeks.

Reporter: L.O'S.

1

JUDGMENT of Miss Justice Laffoy delivered on 18th April, 2007

A. Introduction
2

This judgment is concerned with the following applications:

3

1. The plaintiff's application on foot of a notice of motion issued on 16th October, 2006 seeking the leave of the court to discontinue its proceedings against the first, second, third and fifth defendants (the discontinuance motion).

4

2. The application of the defendants to the counterclaim (the State parties) on foot of a notice of motion issued on 16th October, 2006 seeking directions as to the mode of trial (the directions motion); and

5

3. The following applications in relation to discovery (the discovery motions):

6

(a) the application of the second and fifth defendants on foot of a notice of motion dated 22nd September, 2006 seeking to strike out the plaintiff's action and defence to the counterclaims of the second and fifth defendants of the plaintiff for failure to comply with a discovery order made on 31st July, 2006; and to strike out the defence of the State parties to the counterclaim for failure to comply with the said order;

7

(b) the application of the State parties seeking an extension of time for the purposes complying with the said order for discovery; and

8

(c) an application of the plaintiff for an extension of time to comply with the said order for discovery.

B. The Discontinuance Motion
The motion
9

The plaintiff seeks an order pursuant to O. 26, r. 1 of the Rules of the Superior Courts 1986 (the Rules) giving leave to the plaintiff to discontinue its proceedings as against the first, second, third and fifth defendants on the basis of alternative terms as to costs: that there be no order as to the costs of the proceedings to date; or that the costs of the proceedings be reserved to the trial of the defendants' counterclaims. The plaintiff also invokes the inherent jurisdiction of the court. The plaintiff also seeks directions as to the trial of the counterclaims.

The plaintiff's claim
10

In my judgment delivered on 23rd March, 2006 on earlier applications in these proceedings I outlined the plaintiff's claim as pleaded. The foundation of the plaintiff's claim is its asserted entitlement to enter on certain plants of land in which, inter alia, the first, second, third and fifth defendants have proprietarial interests and carry out works thereon in connection with the construction of an onshore gas pipeline pursuant to the following statutory rights and privileges granted by the predecessor of the first of the State parties (the Minister):

11

(a) a pipeline consent granted pursuant to section 40 of the Gas Act, 1976 (the Act of 1976), as amended, on 15th April, 2002; and

12

(b) compulsory acquisition orders granted by the Minister pursuant to section 32 of the Act of 1976 in respect of certain plots on 3rd May, 2002 and 5th June, 2002.

13

The plaintiff's case as pleaded is also founded on the fact that there exists a planning permission granted by An Bord Pleanála on 22nd October, 2004 for the construction of the onshore gas terminal to which the proposed pipeline will bring gas from the Corrib Gas Field. The wrongs which the plaintiff alleges against the defendants are that they obstructed or interfered with the plaintiff's entry on certain plots which are the subject of the compulsory acquisition orders and prevented the plaintiff from carrying out works thereon, which conduct it is alleged amounts 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. It is also alleged that the third defendant assaulted an agent of the plaintiff and that all of the defendants intimidated servants and agents of the plaintiff. The remedies sought by the plaintiff include perpetual injunctions to restrain obstruction and interference with the plaintiff's entry and carrying out works on the plots. Damages for trespass and nuisance are also claimed, as are damages for assault and intimidation.

14

The allegations of trespass, nuisance, assault and intimidation in respect of which the plaintiff claims damages are historic and are alleged to have occurred in January 2005. The plaintiff's claim, in so far as it seeks perpetual injunctions, is premised on the plaintiff's belief that it would be prevented by the defendants from doing what it is entitled to do on foot of the consent and the compulsory acquisition orders unless the defendants are restrained by the court.

What precipitated the discontinuance motion
15

This court is only one of the venues in which the controversies between residents and landowners in the north of County Mayo, on the one hand, and the plaintiff and the State, on the other hand, in relation to the development by the plaintiff of the Corrib Gas Field and the offshore and onshore works connected with it are being played out. A number of events have occurred since the plaintiff initiated these proceedings in March 2005 which it is necessary to refer to in order to explain the context of the plaintiff's motion to discontinue.

16

In May 2006 the report of Advantica, which had undertaken an independent safety review of the onshore pipeline at the behest of the Technical Advisory Group appointed by the Minister to address safety concerns in relation to the proposed work, was published. The conclusion of Advantica was that, provided the recommendations contained in the report were followed, the belief was that the pipeline would be constructed to an appropriate standard and would be "fit for purpose". Following publication, the plaintiff made an announcement welcoming the report and giving a commitment to adhering to the report's recommendations and to bringing the onshore pipeline into full compliance with the recommendations.

17

In November, 2005 the Minister appointed Peter Cassells (the mediator) as independent mediator to assist in resolving the differences between the plaintiff, on the one hand, and the local community and the first, second and third defendants and two other individuals, who have come to be known as "the Rossport Five", who were committed to prison for contempt arising out of the breach of an interlocutory injunction made in these proceedings, on the other hand. The mediator issued his report and recommendations at the end of July, 2006 and it was published at that time. In his report, the mediator stated that it had not been possible to get agreement between the parties on a way forward. However, he made...

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