Wicklow County Council (plaintiff) v O'Reilly & Others

JurisdictionIreland
JudgeMr. Justice Clarke
Judgment Date02 March 2007
Neutral Citation[2007] IEHC 71
CourtHigh Court
Date02 March 2007
Wicklow Co Council v O'Reilly & Ors
IN THE MATTER OF THE WASTE MANAGEMENT ACTS 1996 TO 2003
IN THE MATTER OF SECTION 58 OF THE WASTE MANAGEMENT
ACT 1996 (AS AMENDED BY SECTION 49 OF THE PROTECTION OF
THE ENVIRONMENT 2003)
AND IN THE MATTER OF AN APPLICATION BY WICKLOW COUNTY
COUNCIL

BETWEEN

WICKLOW COUNTY COUNCIL
PLAINTIFF

AND

JOHN O'REILLY, BROWNFIELD RESTORATION IRELAND LTD, RAYMOND STOKES, ANN STOKES, SWALCLIFFE LIMITED TRADING AS DUBLIN WASTE, LOUIS MORIARTY, EILEEN MORIARTY, SUBSTITUTED BY ORDER DEAN WASTE COMPANY LIMITED , WILLIAM JOHN CAMPBELL, ANTHONY DEAN, UNA DEAN

AND

BY ORDER SAMUEL STEERS
DEFENDANTS

[2007] IEHC 71

[No. 89 SP/2005]

THE HIGH COURT

Abstract:

Practice & procedure - Joinder of party - “Fallback” liability - director of company -Delay - Prejudice - Whether case bound to fail - Whether court should direct trial of preliminary issue

Facts: The plaintiff company director who had been joined for “fallback” liability as a twelfth named defendant in an action relating to a time when he was not a director sought an order that the case against him should be dismissed as it was bound to fail or that it should be tried as a preliminary issue. The plaintiff also alleged unfair prejudice and inordinate delay warranting relief.

Held by Clarke J. that it was not appropriate to dismiss the proceedings but that the Court would direct trial of the preliminary issue as to the appropriateness of joinder of the plaintiff for fallback liability. No question of delay or prejudice arose.

Reporter: E.F.

1

JUDGMENT of Mr. Justice Clarke delivered the 2nd March, 2007 .

1. Introduction
2

2 1.1 In the substantive proceedings the plaintiff ("Wicklow") seeks orders under the Waste Management Act, 1996 (as amended) ("the 1996 Act") relating to the alleged unlawful holding, recovery or disposal of waste on lands at Whitestown in Co. Wicklow.

3

3 1.2 I have already set out in a judgment delivered in these proceedings on 8th February, 2006 ("the earlier judgment") more details of the procedural history of the case to that point in time. It is unnecessary to set out all of the matters dealt with in that judgment again. Suffice it to say that, for the purposes of the application which I now have to decide, it should be noted that amongst the orders made on that occasion was one whereby the twelfth named defendant ("Mr. Steers") was added as a defendant. Mr. Steers was not, as is normal practice, a party to the application to have him added as a defendant. Having now been served with the proceedings, Mr. Steers brings this application before the court for the purposes of seeking an order that he be struck out as a defendant in the proceedings or that a preliminary issue be tried. The orders sought may be briefly stated as follows:-

4

(a) it is said that the case as against Mr. Steers should be dismissed as bound to fail; or

5

(b) in the alternative it is suggested that certain preliminary issues should be tried; or

6

(c) it is said that the proceedings as against Mr. Steers should be struck out on the grounds of delay or allied grounds.

7

4 1.3 I turn first to the question of whether it may be said that the proceedings are bound to fail. Most of the facts relevant to that aspect of the application appear not to be in dispute and I turn to those facts.

2. The Facts
8

2 2.1 It would appear on the evidence currently available that Wicklow discovered an apparently unlawful dump on the 21st November, 2001 at Whitestown. There does not appear to be any suggestion that any unlawful dumping occurred at the site thereafter. For reasons which it will be necessary to go into in a little more detail when dealing with the delay aspect of this case, and which are set out in the earlier judgment, an error was made as to the corporate entity in respect of whom there was evidence of connection with some of the dumping concerned. It was for that reason that it became necessary to add the eighth named defendant ("Dean Waste"). Mr. Steers was, for a period, a director of Dean Waste.

9

3 2.2 However it is common case that Mr. Steers was not a director of Dean Waste during the period when the alleged dumping occurred. He had, by the time the error as to the identity of the proper corporate entity was discovered, become a director Dean Waste and was, therefore, a director of that company at the time when I made my orders of the 8th February, 2006 which had the effect of varying the parties to these proceedings. On that basis Mr. Steers was joined for the purposes of Wicklow seeking, if necessary, a form of "fallback" order in respect of Mr. Steers, similar to that which had been made by O'Sullivan J. in Wicklow County Council v. Fenton (No. 2) [2002] 4 I.R. 44. It also appears to be common case that Mr. Steers is no longer a director of Dean Waste.

10

4 2.3 Therefore, there seems to be no dispute as to the fact that Mr. Steers was a director of Dean Waste but only for a period after any dumping ceased and is no longer a director. Equally it is clear from the case as made by Wicklow, on the evidence currently before the court, that the only order sought against Mr. Steers is a possible "fallback" order of the type which I have noted.

11

5 2.4 In those circumstances Mr. Steers suggests that the case as against him is bound to fail for two reasons:-

12

(a) it is said that no jurisdiction of the type identified by O'Sullivan J. in Fenton in fact, exists; or

13

(b) it is said that even if such a jurisdiction exists, it could have no application to a person in a situation, such as Mr. Steers, who was not involved as a director when any alleged dumping occurred and is no longer a director.

14

Against that background it is necessary to turn to the legal issues.

3. Dismissal as being bound to fail
15

2 3.1 The jurisdiction of the court to dismiss proceedings where they are shown to be frivolous or vexatious (in accordance with Order 19 Rule 28 of the Rules of the Superior Courts) or bound to fail (see Barry v. Buckley [1989] I.R. 306) is well established. It is equally well settled that the jurisdiction should only be exercised sparingly and in clear cases (see Costello J. in Barry v. Buckley and McCarthy J. in Sun Fat Chun v. Osseous Limited [1992] 1 I.R. 425). In the later case McCarthy J., having noted that this court should be slow to entertain an application of the type, went on to state that:-

"Experience has shown that the trial of an action will identify a variety of circumstances perhaps not entirely contemplated at earlier stages in the proceedings; often times it may appear that the facts are clear and established but the trial itself will disclose a different picture".

16

3 3.2 In like manner O'Higgins CJ noted, in Sun Fat Chun, that the discretion can only be exercised "on admitted facts".

17

4 3.3 There is no dispute between counsel in this application as to the applicability of those principles. Against that background it is necessary to turn to the decision of O'Sullivan J. in Fenton.

18

5 3.4 In coming to the conclusion that a jurisdiction existed to make "fallback orders" against the directors of a corporate entity under the provisions of the 1996 Act O'Sullivan J., at p. 62, stated as follows:-

"In interpreting the Act of 1996, I must apply the teleological principle with the result that the Act must be interpreted in a way which achieves these objectives rather than otherwise. If a principle of purely domestic law, such as the protection afforded by limited liability in the case of corporations, were to operate in a given case so as to run counter to and frustrate the attainment of those objectives then, in the absence of any other appropriate remedy, in my opinion such a principle must yield of the superior imperatives of those objectives".

19

6 3.5 On the facts of the case before him O'Sullivan J. went on to indicate that he would make fallback orders of the type sought. In substance such orders appear to arise, on the authority of Fenton, in circumstances where the remediation of the waste problem caused by unlawful activity cannot otherwise be achieved.

20

7 3.6 In Cork County Council v. O'Regan (Unreported, High Court, Clarke J. 17th June, 2005) I followed the decision of O'Sullivan J. in Fenton. It should, however, be noted that the primary basis adopted by me in O'Regan for placing liability on the personal defendant in that case was his actual involvement in the events giving rise to the proceedings rather than on the basis of a "fallback" order. I did, however, indicate that if I was wrong in that conclusion, a "fallback" order would be appropriate.

21

8 3.7 Fenton was also followed by Peart J. in Laois County Council v. Scully [2006] IEHC 2. Having quoted the relevant passage from O'Sullivan J. in Fenton, Peart J. went on to state that:-

"There is no reason not to apply the above principle to the present case."

22

9 3.8 There are, therefore, a number of authorities in this court which suggest the existence of a jurisdiction, in an appropriate case, to make a so called "fallback" order. Counsel for Mr. Steers, however, argues that O'Sullivan J. was wrong in reaching the conclusions which he did as to the relevant jurisdiction and in particular was wrong in considering that such an approach was mandated by the relevant European directives. On the basis of the principles set out in Irish Trust Bank v. Central Bank of Ireland [1976/ 77] ILRM 50, (where Parke J. discussed the circumstances in which a judge of a court of equal jurisdiction might depart from a previous judgment of another judge of such a court), it is submitted that it would be appropriate for the court in this case to depart from the judgment of O'Sullivan J. in Fenton and, by implication, the subsequent following of that judgment by myself in O'R...

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