Usk and District Residents Associations Ltd v The Environmental Protection Agency

• Jurisdiction: Ireland
• Judge: Mr. Justice Clarke
• Judgment Date: 13 January 2006
• Neutral Citation: [2006] IESC 1
• Court: Supreme Court
• Date: 13 January 2006

USK DISTRICT RESIDENTS ASSOCIATION LTD v ENVIRONMENTAL PROTECTION AGENCY

JUDICIAL REVIEW

BETWEEN

USK DISTRICT RESIDENTS ASSOCIATION LIMITED

APPLICANT/APPELLANT

AND

THE ENVIRONMENTAL PROTECTION AGENCY

RESPONDENT

AND

GREENSTAR RECYCLING HOLDINGS LIMITED

NOTICE PARTY/RESPONDENT

[2006] IESC 1

KEARNS J.

MACKEN J.

CLARKE J.

APPEAL No. 548/2004

(High Court Record No. 2004/694 J.R.)

THE SUPREME COURT

PRACTICE AND PROCEDURE

Security for costs

Judicial review - Limited liability company - Security for costs of leave application - Whether prima facie defence established - Whether necessary to show prima facie defence to leave application rather than proceedings as whole - Whether prima facie defence must be established in grounding affidavit - Lancefort Ltd v An Bord Pleanála (No. 2) [1999] 2 IR 270, Interfinance Group Ltd v KPMG Pete Marwick (Unrep, Morris J, 29/6/1998) and Village Residents Association Ltd v An Bord Pleanála [2000] 4 IR 321 considered - Bula v Tara Mines [1988] IR 474 applied - Companies Act 1963 (No 33) s3 90 - Appeal refused and order for security for costs upheld - (548/2004 - SC - 13/1/2006) [2006] IESC 1 - [2006] 1 ILRM 363Usk District Residents Association Ltd v Environmental Protection Agency

Facts: The applicant/ appellant was a company limited by guarantee which was incorporated for the purposes of operating as a residents association. The applicant brought an application for leave to seek judicial review for the purposes of challenging the validity of a grant of a waste licence to the Notice Party. The Notice Party sought security for costs pursuant to s. 390 of the Companies Act 1963. The High Court granted the order and the applicant/ appellant appealed on

the grounds that the Notice Party had failed to establish a prima facie defence to certain aspects of the applicant's claim. Usk raised the provisions of s. 13 of the Waste Management (Licensing) Regulations 2000 and Article 25 of the European Communities (Environmental Impact Assessment) Regulations 1989 (as amended) for the proposition that an applicant for a waste licence is required to include certain information in an environmental impact statement accompanying his application (the "EIS")

Held by the Supreme Court (Kearns, Macken and Clarke JJ) in upholding the order for security for costs made in the High Court that the Notice Party had established a prima facie defence to the proceedings. It was, however, appropriate to vary the order of the High Court in respect of costs by reserving the costs of the security issue to the judge who would have carriage of the leave application.

Reporter: R.W.

COMPANIES ACT 1963 S390

GREENSTAR, RE UNREP HIGH COURT KELLY J 26.11.2004 (EX TEMPORE)

LANCEFORT LTD v BORD PLEANALA & TREASURY HOLDINGS LTD 1999 2 IR 270 1998 2 ILRM 401

INTER FINANCE GROUP LTD v KPMG PEAT MARWICK T/A KPMG MANAGAMENT CONSULTING UNREP HIGH COURT MORRIS 29.6.1998 2000/11/4104

VILLAGE RESIDENTS ASSOCIATION LTD v BORD PLEANALA & MCDONALDS RESTAURANTS OF (IRL) LTD 2000 4 IR 321 2001 2 ILRM 22

RSC O.63A r30

WASTE MANAGEMENT (LICENSING) REGS 2000 SI 185/2000 S13

EUROPEAN COMMUNITIES (ENVIRONMENTAL IMPACT ASSESSMENT) REGS 1989 SI 349/1989 ART 25

WASTE MANAGEMENT ACT 1996 S40(4)(C)

WASTE MANAGEMENT (AMDT) ACT 2001

BULA v TARA MINES & ORS 1987 IR 494

COMHLUCHT PAIPEAR RIOMHAIREACHTA TEO v UDARAS NA GAELTACHTA 1990 ILRM 266 1990 1 IR 320

1. Introduction

2 2 1.1 The applicant/appellant ("Usk") is a company limited by guarantee which was incorporated on 23rd April, 2001 for the purposes of operating as a residents association for the District of Usk in County Kildare. The company has been involved in local issues and campaigns since its establishment.

3 3 1.2 In particular Usk has campaigned in relation to a proposal by the notice party/respondent ("Greenstar") to construct and operate a waste disposal facility in the area. As part of the necessary permissions which Greenstar would require in order to operate the facility concerned, a waste licence from the respondent ("The EPA") was required. On the 8th of June, 2004 the EPA granted a waste licence (register reference no. 168-1) to Greenstar for a non-hazardous waste disposal facility.

2. The Proceedings

2 2 2.1 Usk brought an application for leave to seek judicial review for the purposes of challenging the validity of the grant of that waste licence. It is accepted that any such challenge must be by way of judicial review and that an application for leave must be brought on notice to all relevant parties. Furthermore, substantial grounds must be established. There is no controversy as to the applicability of those requirements in this case.

3 3 2.2 The application for leave to seek judicial review in respect of the waste licence was initiated on 5th August, 2004. In the statement required to ground that application Usk seeks an order of certiorari quashing the decision of the EPA to grant the waste licence and declaratory relief concerning certain of the conditions attached to that licence. In paragraph E of the statement 14 separate grounds for the relief sought are set out. I will refer, in due course, in more detail to certain of the grounds which are relevant to this application.

4 4 2.3 In opposition to the application for leave the EPA filed an affidavit sworn by Patrick J. Nolan on 5th November, 2004. Greenstar filed an affidavit sworn by Gabriel Dennison also on 5th November, 2004. Finally a supplemental affidavit on the part of Usk was filed being that of Jack O'Sullivan sworn on 19th November, 2004.

3. Security for Costs

2 2 3.1 On the 17th November, 2004 Greenstar brought a motion before the High Court seeking security for costs pursuant to s. 390 of the Companies Act 1963. On the 26th November, 2004 that application came on for hearing before the High Court (Kelly J.) who delivered an ex tempore judgment on that day. It is as against that judgment that Usk appeals to this court. The starting point of any consideration of the appeal must, therefore, be that determination of the High Court.

4. The High Court Judgment

2 2 4.1 As appears from the approved note of his judgment, Kelly J. was satisfied on the evidence that it was likely that Usk would be unable to pay Greenstar's costs in the event that Greenstar was successful. On that basis the Court was satisfied that Greenstar had established a prima facie entitlement to security for costs.

3 3 4.2 As further appears from the approved note of the judgment, the central contention advanced by Usk in response to Greenstar's application for security was to assert that Greenstar had not, in respect of a number of aspects of the claim as set out in the statement of grounds, established a prima facie defence. In particular, and is confirmed by the note of the judgment, Usk argued that in respect of grounds 7, 9 and 14 of the statement of grounds Greenstar had not established that either it (Greenstar) or the EPA had a prima facie defence. For the reasons set out in the judgment, Kelly J. rejected the contention in respect of each of the grounds advanced and came to the conclusion that Greenstar had established that a prima facie defence existed.

4 4 4.3 The High Court, therefore, found that Usk would be unable to meet Greenstar's costs in the event that Greenstar should succeed. Kelly J. also found that Greenstar had established that there was a prima facie defence to Usk's application. Therefore, having regard to the absence of any contention that there were other special circumstances which would justify the court in exercising its discretion against the grant of an order for security for costs, Kelly J. ordered that such security be provided.

5 5 4.4 Two further aspects of the hearing before the High Court need to be noted.

Firstly, at the level of principle, Kelly J. confined the order made in respect of security for costs at that stage to the costs that might be incurred in relation to the application for leave.

It would appear that the reason for confining the order in that respect was to take into account the possibility that Usk might fail to obtain leave and that the entire proceedings might thereby come to an end. In those circumstances the only costs which would have been incurred by Greenstar would be the costs of appearing to oppose the leave application.

No appeal is brought in respect of that aspect of the decision. It would appear that the question of ordering further security for costs in respect of a substantive hearing was left over until after the leave hearing had been determined.

6 6 4.5 Secondly, in accordance with normal practice, both parties submitted evidence by way of a report from a legal cost accountant as to the costs that would be likely to be incurred by Greenstar in an unsuccessful application by Usk for leave. The court preferred the lower sum indicated by the cost accountants instructed on behalf of Usk and fixed the amount of the security in that sum.

5. The Appeal

2 2 5.1 Against that decision Usk appeals to this Court. As the only real ground of opposition to the making of an order for security of costs in favour of Greenstar in the High Court was to assert that Greenstar had failed to establish a prima facie defence to certain aspects of Usk's claim the appeal, not surprisingly, was directed to the same matter. Therefore, in substance, the appeal concerns the sole question of whether it can properly be said that a prima facie defence has been established.

6. Security for Costs û The Jurisdiction

2 2 6.1 The general principles which are applicable to the grant of security for costs are now well settled. That those principles have application to cases such as this (where the corporate entity concerned is a vehicle for a group of...