Short and Others v Ireland, Attorney General and British Nuclear Fuels Plc

• Jurisdiction: Ireland
• Judge: Justice Michael Peart
• Judgment Date: 02 April 2004
• Neutral Citation: [2004] IEHC 64
• Court: High Court
• Date: 02 April 2004

[2004] IEHC 64

THE HIGH COURT

Record Number: 1751P/1994

SHORT & ORS v. IRELAND, AG & BNF PLC

Between:

Constance Short, Mary Kavanagh, Mark Deary and OlannHerr

Plaintiffs

And

Ireland, The Attorney General and British Nuclear FuelsPlc.

Defendants

Citations:

EEC DIR 85/337

TREATY ON EUROPEAN UNION ART 130R

ATOMIC ENERGY AUTHORITY ACT 1971 (UK)

NUCLEAR INSTALLATIONS ACT 1965 (UK)

RADIOACTIVE SUBSTANCES ACT 1993 S13

RADIOAVTIVE SUBSTANCES ACT 1993 S16

RSC O.11

RSC O.11A

SHORTT V IRELAND 1996 2 IR 188

EEC DIR 80/836 ART 6(A)

EEC DIR 84/467 ART 2

RSC O.11 r1(H)

R V SECRETARY OF STATE FOR THE ENVIRONMENT & ORS EX PARTE GREENPEACE LTD & ANOR 1994 4 AER 352

HENDERSON V HENDERSON 1843 3 HARE 100 67 ER 313

CARROLL V RYAN & ORS 2003 1 IR 309 2003 2 ILRM 1

RSC O.11 r1(F)

ADAMS V DPP 2001 1 IR 47

BUTTES GAS & OIL CO V HAMMER & ANOR (NO 2) 1981 3 AER 616

UNDERHILL V HERNANDEZ 1897 168 US 250

OETJEN V CENTRAL LEATHER CO 1918 246 US 297

EEC DIR 80/836 ART 37

EEC DIR 80/836 ART 38

EEC DIR 80/836 ART 141

EEC DIR 80/836 ART 143

EEC DIR 80/836 ART 31

EEC DIR 80/836 ART 32

EEC DIR 80/836 ART 33

TREATY ON EUROPEAN UNION ART 100

EEC DIR 80/836 ART 12

SAARLAND & ORS V MIN INDUSTRY POST & TELECOMMUNICATIONS & TOURISM & ORS 1989 1 CMLR 529

BRUSSELS CONVENTION 1968 ART 5(3)

TATE V MIN SOCIAL WELFARE 1985 1 IR 418

STATUTE OF LIMITATIONS 1957 S11(2)

EEC DIR 79/7

FRANKOVICH V ITALIAN REPUBLIC 1991 1 ECR 5357

BIER V MINES DE POTASSE DALSACE 1976 ECR 1735

BRUSSELS CONVENTION 1968 ART 2

BRUSSELS CONVENTION 1968 ART 5

MCKENNA V H (E) 2002 1 IR 72 2002 2 ILRM 117

PROCEEDS OF CRIME ACT 1996 S2

PROCEEDS OF CRIME ACT 1996 S3

VAN SCHIJNDEL & VAN VEEN V STICHTING PENSIOENFONDS 1995 1 ECR 4705

R V SECRETARY OF STATE FOR TRANSPORT EX PARTE FACTORTAME (NO 2) 1990 ECR 1 2433 1990 3 WLR 818

TREATY ON EUROPEAN UNION ART 234

Abstract:

Practice and procedure - Declaratory relief - Service outside the jurisdiction - Injunctive relief - Damages - Environmental impact assessment - Tort - Jurisdiction - European directives - Res judicata - Whether the Irish courts had jurisdiction to adjudicate upon an administrative decision made in another jurisdiction - Rules of the Superior Courts

Facts: The plaintiffs were residents of County Louth who commenced proceedings in 1994 in which they sought certain declaratory reliefs as against the three defendants. They also sought damages as against the first and second named defendants and injunctive relief against the third named defendant. The third named defendant (BNFL) was a limited liability company registered in England. It was incorporated to fulfil the purposes of the United Kingdom's Atomic Energy Authority Act, 1971 and had its place of business at Sellafield in Cumbria. BNFL's activities included the reprocessing of spent nuclear fuels and in 1992 pursuant to full planning permission it built a Thermal Oxide Reprocessing Plant (THORP) at its site. THORP was designed to re-process spent oxide fuel from nuclear reactors in Great Britain and from overseas. In that regard the relevant British Government Ministers granted new authorisations in December 1993 pursuant to sections 13 and 16 of the Radioactive Substances Act 1993, which permitted the discharge of radioactive liquid and gaseous material subject to specified restrictions as to quantity and type. The plaintiffs claimed that the discharge of radioactive liquid and gaseous material from the plant had already and would continue to cause considerable personal health and environmental damage and economic loss in the area where they resided. Consequently, the plaintiffs sought declarations that the nuclear fuel reprocessing activities which the third named defendant was beginning to carry out at its site at Sellafield, namely the THORP project were being or were about to be carried out in contravention of Council Directive 85/337 of 27 June 1885 by reason of the non existence of an environmental impact assessment as to their effects as required by the said directive. The plaintiffs also alleged that the activities were being conducted in breach of Council Directive 80/836 Euratom by reason of the lack of justification within the meaning of the Directive prior to the purported authorisations of liquid air or other discharges from the said THORP installation and project. In the event that those declarations were granted, the plaintiffs then sought certain injunctive reliefs which, if granted, would restrain BNFL from carrying on its nuclear reprocessing activities at Sellafield. Those claims were referred to as the regulatory claims. In a judgment delivered on 13 February 2003, the President of the High Court identified a number of issues which could be conveniently determined in advance of the main hearing. The substantive issue related to the jurisdiction of the court to determine and declare that THORP should have been subject to an environmental impact assessment or that it should have been subject to a justification procedure as provided for in the relevant European Directives. In that regard the plaintiffs submitted that it had already been determined by the High Court and on appeal by the Supreme Court at an earlier stage of the proceedings that the court had jurisdiction in relation to the regulatory claims as well as the tort claims. Accordingly, the plaintiffs maintained that the issue was res judicata. The plaintiffs' submission referred to the fact that on 22 March 1994, being the day after the issue of the Plenary Summons in this case, the plaintiffs applied for and were granted liberty to serve notice of that summons on BNFL at its registered office in England pursuant to Order 11 of the Rules of the Superior Court (RSC) and that following the making of that order and the service of the proceedings on BNFL, an application was made by BNFL to have the order set aside.

The plaintiffs also submitted that it would be an abuse of process for BNFL to make arguments before the court, which were not previously made in the High Court or the Supreme Court. The plaintiffs also submitted that in view of the decision of O'Hanlon J in the High Court that BNFL was a necessary and proper party to the proceedings, which was not overturned by the Supreme Court, the question of whether BNFL was or was not a proper party was therefore res judicata. On behalf of BNFL it was submitted that the only question for determination was whether the plaintiffs ought to have been allowed to litigate the issues in this jurisdiction or whether the appropriate forum was the English Courts. It was submitted that apart from the fact that the Convention specifically excluded administrative actions from its ambit in relation to service of proceedings abroad, there were very sound reasons of public policy why the courts both in this jurisdiction and in the neighbouring jurisdiction had decided that in relation to proceedings to judicially review administrative decisions, the appropriate forum in which to conduct that litigation was the jurisdiction of the body whose decision was sought to be impugned, in this case England. Counsel on behalf of the plaintiffs sought to distinguish the present case from other cases on the basis that the issue in the present case was a matter arising under European Law, which was a system of law that was equally applicable in this jurisdiction as in the UK and accordingly he submitted that there was no objection in principle why the courts in this jurisdiction could not be in as good a position to interpret that law as the Courts in the UK were. It was further submitted on behalf of the plaintiffs that a breach of an EC Directive is itself a tort and on that basis it was sought to bring the claims in relation to breaches of the directives under the umbrella of the other tort claims.

Held by Peart J. in refusing the relief sought:

1. That despite the fact that arguments were advanced before the High Court and Supreme Court relating to the jurisdiction of Irish Courts to adjudicate upon the British regulatory claims, both Courts refused to determined that issue. Both the High Court and the Supreme Court were of the view that the claim was principally a tort claim or quia timet action, rather than a claim primarily based upon a challenge to the authorisations themselves, being an administrative or judicial review type challenge. The Courts appeared to have deliberately refrained from making any decision on the issue of whether the Irish Courts had jurisdiction to make declarations as to the illegality or invalidity of British administrative decisions. Accordingly, this court was not precluded from re-visiting the issue of jurisdiction in the form in which that question had been asked in the Order of the President of the High Court.

2. That it was not an abuse of process on the part of BNFL to have the matter argued and determined by this court, even though some of the arguments before the court may not have been made in the previous fora, and many of them may have been so made.

3. That when a court makes an order pursuant to Order 11, rule 1 (h) RSC it is not precluding any further debate regarding the wider issue of jurisdiction to grant the relief sought in the proceedings. There was no authority to support the contention that an unchallenged ex parte order under Order 11 RSC forecloses forever a challenge to jurisdiction by way of defence either at the trial of the action or at the trial of a preliminary issue as to jurisdiction.

4. That the fact that a court has jurisdiction to deal with some of the heads of claim does not mean that the court has jurisdiction to deal with all of the claims. Jurisdiction must exist in relation to each head of claim or relief sought, completely independently of the others. The court first had to consider whether the plaintiffs' claim for a declaration and injunction was a free-standing claim, amounting to a judicial review of...