Shell E & P Ireland Ltd v McGrath

JurisdictionIreland
JudgeMr. Justice Clarke
Judgment Date22 January 2013
Neutral Citation[2013] IESC 1
Date22 January 2013
CourtSupreme Court
Docket Number[S.C. No. 349 of 2010]
Shell E & P Irl Ltd v McGrath & Ors
Between/
Shell E & P Ireland Limited
Plaintiff

and

Philip McGrath, James B. Philbin, Willie Corduff, Monica Muller, Brid McGarry and Peter Sweetman
Defendants/Respondents

and

The Minister for Communications, Marine and Natural Resources, Ireland and The Attorney General
Defendants to the Counter-claim/Appellants

[2013] IESC 1

[Appeal No: 349/2010]

THE SUPREME COURT

PRACTICE AND PROCEDURE

Time limits

Plenary action - Declaratory relief - Counterclaim - 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 - Blanchfield v Hartnett [2002] 3 IR 207; [2002] 2 I.L.R.M. 435; BTF v Director of Public Prosecutions [2005] IESC 37, [2005] 2 IR 559; Dekra Éireann Teo v Minister for Environment [2003] 2 IR 270; De Roiste v Minister for Defence [2001] 1 IR 190; Dublin City Council v Williams [2010] IESC 7, [2010] 1 IR 801; Farrell v Bank of Ireland [2012] IESC 42, (Unrep, SC, 10/7/2012); Re the Illegal Immigrants (Trafficking) Bill, 1999 [2000] 2 IR 360; Manchester City Council v Pinnock [2010] UKSC 45, [2011] 2 AC 104; Murphy v Flood [2010] IESC 21, [2010] 3 IR 136; O'Donnell v Dun Laoghaire Corporation [1991] ILRM 301; O'Reilly v Mackman [1983] 2 AC 237; Shell E & P Ireland Ltd vMcGrath [2006] IEHC 99, [2006] 2 ILRM 299; Shell E & P Ireland Ltd v McGrath [2010] IEHC 363, (Unrep, Laffoy J, 4/3/2010); Slatterys Ltd v Commissioner of Valuation [2001] 4 IR 91; The State (Cussen) v Brennan [1981] IR 181 and Wandsworth LBC v Winder [1985] AC 461 - Rules of the Superior Courts 1986 (SI 15/1986), O 84 - Appeal allowed (249/2010 - SC - 22/1/2013) [2013] IESC 1

Shell E & P Ireland Ltd v McGrath

Facts: The plaintiff company, Shell, had sought injunctions to prevent wrongful interference by local residents with a pipeline, activities taking place on lands the subject of compulsory acquisition orders (CAOs) pursuant to the Gas Act 1976. State defendants had been joined as defendants to a counter-claim in which the validity of statutory decisions were challenged. The Minister contended that the claim which sought to question the validity of statutory decisions was out of time. The High Court directed that the questions concerning the public law counter-claim were out of time. The High Court had identified the core issues as being inter alia whether provisions of Order 84 rule 21 Rules of the Superior Courts applied by analogy to the pleas. The High Court had rejected the reliance on alleged ignorance of the law and stress and trauma suffered. The Minister contended that the High Court had erred in failing to find that Order 84 rule 21 applied by analogy to the counter-claim of the defendants. The Supreme Court considered the time limits for the bringing of judicial review proceedings and the question of whether time limits which did not make express reference to matters raised in a defence or by counter-claim rather than direct and express statutory requirements, altered their applicability situation.

Held by the Supreme Court per Clarke J. (Denham CJ and Fennelly JJ concurring), in allowing the appeal of the Minister and substituting an order dismissing the challenge to the validity of the CAO's and the consent on the grounds that the challenges concerned were out of time by reference to the provisions of Order 84 which would apply by analogy to the counterclaim. The defendants were out of time to mount the challenges and in this regard the Court disagreed with the trial judge. There was no basis for saying that the time limits did not apply. The counter-claim could be characterised as a substantive claim rather than a defence.

SHELL E & P IRL LTD v MCGRATH UNREP LAFFOY 4.3.2010 2010/47/11741 2010 IEHC 363

GAS ACT 1976 S32

SHELL E & P IRL LTD v MCGRATH & ORS 2006 2 ILRM 299

GAS ACT 1976 S40

RSC O.84

RSC O.26 r1

O'DONNELL v DUN LAOGHAIRE CORP 1991 ILRM 301

O'REILLY v MACKMAN 1983 2 AC 237

WANDSWORTH LONDON BOROUGH COUNCIL v WINDER 1985 1 AC 461

RSC O.84 r21

CONSTITUTION ART 40.3

MANCHESTER CITY COUNCIL v PINNOCK 2011 2 AC 104

SLATTERYS LTD v CMSR FOR VALUATION 2001 4 IR 91

DEKRA EIREANN TEO v MIN FOR THE ENVIRONMENT 2003 2 IR 270

RSC O.84(A) r4

DE ROISTE v MIN FOR DEFENCE 2001 1 IR 190

F (BT) v DPP 2005 2 IR 559

ILLEGAL IMMIGRANTS (TRAFFICKING) BILL 1999, IN RE 2005 2 IR 360

DUBLIN CITY COUNCIL v WILLIAMS 2010 1 IR 801

MURPHY & ORS v JUSTICE FLOOD & ORS 2010 3 IR 136

BLANCHFIELD v HARNETT 2002 3 IR 207

FARRELL v BANK OF IRELAND UNREP SUPREME 10.7.2012 2012 IESC 42

1. Introduction
2

1.1 The proposed construction of an on-shore gas pipeline, to connect the sub-sea wells of the Corrib gas field with an on-shore gas terminal near Rossport in Co. Mayo, has been the subject of significant political and legal controversy for many years. Aspects of that proposal form the backdrop to the issue which this court now has to consider. However, it is important to emphasise, at the outset, that this court is not now concerned with the legality of that proposal still less the merits or otherwise of same and is only indirectly concerned with some of the legal issues which have been canvassed in relation to that proposal.

3

1.2 In simple terms (and at the very real risk of over simplification) this court is concerned with the time limits which apply for bringing certain types of judicial review applications before the courts and the application of those time limits to the circumstances of this case. These proceedings have a complex procedural history, some of which will require to be considered in order to resolve the issues which arise on this appeal. I will turn to that procedural history in due course. However, for present purposes it is sufficient to note that certain statutory decisions were made by the first named defendant to the counter-claim ("the Minister") which decisions were in favour of the plaintiff ("Shell") and, if valid, facilitate Shell in giving effect to the proposed pipeline. It will be necessary to refer to the specific decisions in due course.

4

1.3 These proceedings commenced with Shell seeking injunctions and other relief connected with what was alleged to be a wrongful interference by certain local residents and their supporters (including the defendants) with what Shell asserted was lawful work carried on by it in respect of the construction of the pipeline. As part of the defence to that claim the Minister and the other State defendants were joined as defendants to a counter-claim in which the validity of the statutory decisions concerned was challenged. In addition damages were sought in that counterclaim against Shell on the basis that, it was argued, the statutory decisions in question were invalid and as a consequence Shell was said to have had no legal authority for entering onto relevant lands and carrying out relevant works.

5

1.4 The Minister contended in the High Court that the claim which sought to question the validity of the relevant statutory decisions was out of time. That question was tried as a preliminary issue by the High Court (Laffoy J.) but the Minister's contentions were rejected in a judgment delivered on the 4 th March, 2010, [2010] IEHC 363. The Minister and the other State defendants have appealed to this court against that rejection. It follows that this judgment is concerned with whether the Minister is correct in the contention, which he unsuccessfully argued before the High Court, to the effect that it is now too late to question the validity of the statutory measures which are sought to be challenged in the counter-claim in these proceedings. From that brief description of the issues which arise, it is fairly clear that some account of the complex procedural history of these proceedings is necessary in order to understand the precise issues which arise on this appeal. I, therefore, turn to that procedural history.

2. Procedural History
2

2.1 Shell issued proceedings against the six named defendants on the 4 th March, 2005 with a statement of claim being delivered on the 18 th April. Damages were sought together with various orders restraining the defendants from a variety of alleged activities in respect of relevant lands at Rossport which had been the subject of compulsory acquisition orders ("CAOs") made by the Minister under s.32 of the Gas Act, 1976 (as amended).

3

2.2 As a result of a judgment of Laffoy J. delivered on the 23 rd March, 2006, [2006] 2 I.L.R.M. 299, an amended defence and counterclaim were filed on the 30 th March, 2006. In that counterclaim, damages were sought against Shell together with various declarations designed to establish that the CAOs were invalid and of no effect, that a consent granted by the Minister under s.40 of the Gas Act, 1976 ("the consent") was void together with various constitutional claims and claims arising under the European Convention for the Protection of Human Rights and Fundamental Freedoms ("ECHR"). By virtue of the reliefs sought in that counterclaim, it was, of course, necessary to join the Minister and the State defendants ("the Minister") as defendants to that counterclaim.

4

2.3 The Minister filed a defence to the counterclaim on the 27 th April, 2006. In that defence, amongst other things, the Minister alleged that the defendants were guilty of laches or delay in seeking equitable relief. In addition the Minister asserted that the defendants had failed to comply with the time limits specified in O.84 of the Rules of the Superior Courts in seeking to challenge the validity of the CAOs and the consent. It should also be noted that Shell's claim against the fourth and sixth named defendants was struck out by Laffoy J. for want of...

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