Short v Ireland (No 2)

• Jurisdiction: Ireland
• Judge: MR JUSTICE FENNELLY
• Judgment Date: 11 August 2006
• Neutral Citation: [2006] IESC 46
• Court: Supreme Court
• Docket Number: No 341/2004,[S.C. No. 341 of 2004]
• Date: 11 August 2006

BETWEEN

CONSTANTCE SHORT,MARY KAVANAGH,MARK DEAREY and OLANN HERR

Plaintiffs

and

IRELAND,THE ATTORNEY GENERAL AND BRITISH NUCLEAR FUELS Plc.

Defendants

Murray CJ.

Fennelly J.

Macken J.

No 341/2004

THE SUPREME COURT

Abstract:

Conflicts of laws - Administrative law - Jurisdiction of Irish court to determine lawfulness or validity under law of UK of administrative decision made in UK - Comity of courts - Res judicata

Facts: The principal point in this appeal was whether the courts of Ireland had jurisdiction to determine the lawfulness or validity of certain administrative decisions made in the UK authorising or permitting the operations of the third named defendant, British Nuclear Fuels plc. The plaintiffs claimed that the issue had already been decided by this Court in 1996 and was res judicata.

Held by the Supreme Court (Murray CJ, Fennelly and Macken JJ) in dismissing the appeal and affirming the order of the High Court that the High Court did not have jurisdiction. The principle of comity of courts required that the courts of one state abstain from pronouncing on matters such as the regulatory claims, in respect of which the primary and obvious jurisdiction rested with the courts of another state. The matter was not determined by judgments delivered in 1995 and 1996.

Reporter: R.W.

1 JUDGMENT of MR JUSTICE FENNELLY delivered on the 11th day of July, 2006

2 This is an appeal from a judgment of Peart J in the High Court. He determined a number of points of law in this action, which was commenced in 1994. They concern the operations of the third-named defendant (hereinafter "BNFL") at Sellafield, Cumbria in the United Kingdom. The plaintiffs are Irish citizens, who reside in County Louth. They complain that BNFL, by operating a Thermal Oxide Reprocessing Plant ("THORP) at Sellafield, has caused discharges into the Irish Sea, resulting in pollution of the environment and damage or potential damage to the health of the plaintiffs.

3 The principal point of the appeal is whether the courts of Ireland have jurisdiction to determine the lawfulness or validity of certain decisions authorising or permitting the operations of which the plaintiffs complain. The plaintiffs claim that this issue has already been decided by this Court in 1996 and is res judicata.

4 I am happy to adopt the following account from the judgment of Peart J of the factual background to the claims:

5 "BNFL is a limited liability company registered in England, the shares in which are held by or on behalf of the United Kingdom by its Secretaries of State. The company was incorporated in order to fulfil the purposes of the United Kingdom's Atomic Energy Authority Act, 1971, and, inter alia, to facilitate the commercial development of nuclear fuel. Its place of business is at Sellafield in Cumbria where it is the holder of a site licence under the United Kingdom's Nuclear Installations Act, 1965. It presently carries on business involving nuclear reactors including the reprocessing of spent nuclear fuels at the site. In the late 1960s BNFL decided to establish at the site a Thermal Oxide Reprocessing Plant ("THORP') which was designed to reprocess spent oxide fuel from nuclear reactors in Great Britain and from overseas, and between 1971 and 1977 BNFL sought planning permission for THORP. Outline Planning Permission was granted in 1978, followed by full Planning Permission in 1983. The building of THORP was completed in 1992. For the purpose of carrying out its operations, BNFL applied in April 1992 for certain new authorizations to discharge radioactive wastes from the Sellafield site into the Irish Sea and into the atmosphere. Draft authorizations were made available for public consultation in November 1992, and this consultation process lasted for ten weeks. Further consultations took place to consider some issues which had not been considered already, such as the justification for the new plant and proposed emissions of radioactivity in terms of overall benefit, and the non-proliferation implications of an increasing stockpile of plutonium. The relevant British Government Ministers eventually granted the new authorizations in December 1993 pursuant to sections 13 and 16 of the Radioactive Substances Act 1993, which permit discharge of radioactive liquid and gaseous material subject to specified

6 restrictions as to quantity and type.

7 The plaintiffs claim that these discharges have already and will continue to cause considerable personal health and environmental damage and economic loss in the area where they live, and that they as well as other Irish people are among those who can expect to die as a result of the THORP operation. They also say that the commissioning and operation of the THORP plant constitutes in itself a source of mental and psychiatric injury to the plaintiffs and to their families, especially having regard to the absence of the environmental impact assessment required by Directive 851337, and/or the justification required by Directive 801836, and having regard to the conduct of BNFL in relation to the site at Sellafield. "

8 To complete the picture, it is relevant to recall that the High Court of England and Wales (Potts J.) gave judgment on 4th March 1994 in the case of R v Secretary of State for the Environment, ex parte Greenpeace [1994] 4 All ER 352, dismissing an application for judicial review of the relevant planning consents and other authorisations relevant to the THORP operation. One of the matters of which the plaintiffs complain, in their statement of claim in this action, is that the state defendants failed in their duty by not seeking leave to join in that action.

9 I propose now to outline the history of the litigation.

10 The litigation to date

11 The Plenary Summons was issued on 21st March 1994.

12 It claims against all defendants " declarations and Injunctions and damages for nuisance, trespass, wrongful acts, unlawful interference with their Constitutional Right of bodily integrity and for breach of European Union Law. "

13 The reliefs claimed against the first two defendants, whom I will describe as the state defendants, are not relevant to the present appeal. The thrust of the allegations against the state defendants is that they failed to protect the plaintiffs' constitutional right to bodily integrity. In particular, it is alleged that they failed to conduct litigation in the courts of the United Kingdom or internationally to resist the grant of legal authorisations to BNFL. It is also complained that the state defendants failed to make arrangements for effective access to BNFL's operations so as to be in a position to monitor compliance with the authorisations and that the state defendants should have published an environmental assessment of those operations.

14 As against BNFL, the Plenary Summons claimed:

15 "i. A declaration that the THORP nuclear fuel reprocessing activities which the said Defendant is beginning to carry out at its site in Sellafteld, Cumbria, are being conducted in contravention of

• A. Council Directive 851337 of 27th June 1985: failure to provide an environmental assessment as required by the said Directive.

• B. Council Directive 801836 Euratom: failure to provide justification which demonstrates that the exposure to radiation to the Plaintiffs and others who live near the Coast of County Louth is justified by the benefit to their society.

  ii. An Injunction restraining the said defendant from carrying on its reprocessing activities until it has fully complied with the said Directives.

  iii. Damages and/or Compensation. "

16 By order dated 22nd March 1994, Carney J granted liberty to serve the Plenary Summons on BNFL outside the jurisdiction. That order recited that it appeared that the action fell " within the class of action set out in Order 11 Rule 1 of the Rules of the Superior Courts." It did not further specify the particular class of action. BNFL entered a conditional appearance for the limited purpose of contesting the jurisdiction of the court. It then issued a notice of motion to set aside service of the Plenary Summons upon it.

17 That motion was dismissed following a judgment of O'Hanlon J in the High Court. The appeal by BNFL from that decision was dismissed by the Supreme Court. It will be necessary to consider those judgments, which are reported at [1996] I.R. 188, in more detail in connection with the plaintiffs' claim that the issues in this appeal were determined conclusively in 1996.

18 The motion to set aside service was heard by O'Hanlon J over a period of six days in the High Court. His judgment, delivered on 30th March 1995, is reported at [1996] I.R. 188 at 194. He held that the order of Carney J had been validly made and he declined to set it aside. O'Hanlon J described the plaintiffs' claim as

19 "a quia timet action to restrain the commission of the tort of negligence by [BNFL] in the commissioning and operation of the THORP project, and for damages insofar as they may be provable in respect of such

20 activities on the part of the said defendant...... "

21 In respect of that part of the claim which makes complaint in respect of non

22 compliance with the two directives mentioned in the Plenary Summons, O'Hanlon J said (see page 200):

23 "While much is made of the alleged failure on the part of the said defendant [BNFL] to comply with the requirements of Council Directive 80/836/Euratom, art. 6 (a), as replaced by art. 2 of Council Directive 84/467IEuratom, requiring prior justification of the THORP project before it could be put into operation, and Council Directive 8513371EEC of the 27th June, 1985, on the assessment of certain public and private projects on the environment, I am of opinion that, in reality, they are being called in aid of an overall claim based on threatened negligence and...