Wicklow County Council v O'Reilly and Others

• Jurisdiction: Ireland
• Judge: Mr. Justice O'Keeffe
• Judgment Date: 07 December 2010
• Neutral Citation: [2010] IEHC 464
• Court: High Court
• Date: 07 December 2010

Wicklow County Council v O'Reilly & Ors

IN THE MATTER OF THE WASTE MANAGEMENT ACTS 1996 TO 2003

IN THE MATTER OF AN APPLICATION PURSUANT TO SECTION 58 OF THE WASTE MANAGEMENT ACT 1996 (AS AMENDED BY SECTION 49 OF THE PROTECTION OF THE ENVIRONMENT ACT 2003 )

AND IN THE MATTER OF AN APPLICATION BY WICKLOW COUNTY COUNCIL

BETWEEN

WICKLOW COUNTY COUNCIL

PLAINTIFF

AND

JOHN O'REILLY, BROWNFIELD RESTORATION IRELAND LIMITED, SWALCLIFFE LIMITED (TRADING AS DUBLIN WASTE), SUBSTITUTED BY ORDER, DEAN WASTE CO. LIMITED, AND AND BY ORDER, SAMUEL J. STEARS

DEFENDANTS

[2010] IEHC 464

[No. 89 S.P./2005]

THE HIGH COURT

PRACTICE & PROCEDURE

Trial

Failure to make proper discovery - Court order for discovery - Mistrial on basis of failure to make proper discovery- Prejudice - Legally enforceable right to obtain documents from particular person - Whether fair trial possible- Murphy v O'Donoghue [1996] 1 IR 123 followed; Mercantile Credit Company v Heelan [1998] 1 IR 81; Radiac Abrasives Inc v Prendergast [1996] (Unrep, Barron J, 13/3/1996); Dunnes Stores (Ilac Centre) Ltd v Irish Life Assurance [2008] IEHC 114, (Unrep, Clarke J, 23/4/2008); Logicrose v Southend United Football Club [1988] 1 WLR 1256; Wicklow County Council v Fenton [2002] 4 IR 44; Taylor v Clonmel Healthcare Ltd [2004] 1 IR 169; Bula v Tara Mines (No 6) [1994] 1 ILRM 111; Bula v Tara Mines (No 5) [1994] 1 IR 487; Digicel (St Lucia) v Cable and Wireless plc [2009] 2 All ER 1094; Geaney v Elan [2005] IEHC 111, (Unrep, Kelly J, 13/4/2005) considered; Leicestershire County Council v Michael Faraday and Partners Ltd [1941] 2 KB 205 and Johnston v Church of Scientology [2001] 1 IR 682 distinguished - Rules of the Superior Courts 1986 (SI 15/1986), O 31 - Application for mistrial refused (2005/89 SP - O'Keeffe J - 17/12/2010) [2010] IEHC 464

Wicklow County Council v O'Reilly and Others

Facts: The second and eighth named defendants made an application for an order as against the plaintiff declaring the trial to date a mistrial or seeking an order dismissing the plaintiff's claim for failure to make discovery. The plaintiff sought reliefs against the defendants for unauthorised dumping in Wicklow, pursuant to s. 58 Waste Management Act 1996, as amended. The High Court had made a Discovery Order in 2007 and a hearing had taken place in 2009. There were three grounds to the mistrial application, namely the absence of proper discovery which had the effect of infecting adversely critical cross-examinations; actions taken by the plaintiffs witnesses contrary to the parties agreement and electronic transmission by the plaintiff of transcripts to one individual contrary to the agreed procedures. It was acknowledged that the plaintiff had made errors in respect of the searches made.

Held by O' Keefe J. that there was no legal basis for declaring a mistrial. While the plaintiff neglected to make proper discover, the failure was not wilful. There had been reasonable efforts to comply with the orders of the Court. The motion to strike out for failure to make proper discovery was made with justification when the hearing resumed. 60% of the costs of the application for each of the defendants would be borne by the plaintiff.

Reporter: E.F.

PROTECTION OF THE ENVIRONMENT ACT 2003 S49

WASTE MANAGEMENT ACT 1996 S58(1)(A

WASTE MANAGEMENT ACT 1996 S39

RSC O.31 r29

MURPHY v DONOHUE 1996 1 IR 123

MERCANTILE CREDIT CO OF IRL LTD & ANOR v HEELAN & ORS 1998 1 IR 81

RADIAC ABRASIVES INC v PRENDERGAST UNREP BARRON 13.3.1996 1996/8/2240

DUNNES STORES v IRISH LIFE PLC & JOSEPH O'REILLY UNREP CLARKE 23.4.2008 2008/16/ 3334 2008 IEHC 114

LOGICROSE LTD v SOUTHEND UNITED FOOTBALL CLUB LTD 1988 1 WLR 1256

WICKLOW CO COUNCIL v FENTON 2002 4 IR 44

DELANY & MCGRATH CIVIL PROCEDURE IN SUPERIOR COURTS CHAP 10

TAYLOR v CLONMEL HEALTHCARE LTD 2004 1 IR 169

RULES OF THE SUPERIOR COURTS (NO 2) (DISCOVERY) 1999 SI 233/ 1999

WASTE MANAGEMENT ACT 1996 S14

LEICESTERSHIRE CO COUNCIL v FARADAY 1941 2 KB 205

WASTE MANAGEMENT ACT 1996 SCHEDULE 5 PART A

BULA v TARA MINES (NO.6) 1994 I ILRM 111

JOHNSTON v CHURCH OF SCIENTOLOGY MISSION OF DUBLIN LTD & ORS 2001 1 IR 682

RATING & VALUATION ACT 1925 S38 (UK)

BULA TARA MINES (NO.5) 1994 1 IR 487

RULES OF SUPERIOR COURT (DISCOVERY) SI 93/2009

DIGICEL v CABLE & WIRELESS 2009 2 AER 1094

GEANEY v ELAN UNREP KELLY 13.4.2005 2005/27/5676 2005 IEHC 111

MERCANTILE CREDIT CO OF IRL LTD & ANOR v HEELAN & ORS 1998 1 IR 81

RSC O.31 r21

HALSBURYS LAWS OF ENGLAND (4ED) VOL 13 PAR 39

HALSBURYS LAWS OF ENGLAND (4ED) VOL 13 PAR 45

1 1. This is an application on behalf of the second ("Brownfield") and eighth named defendants (sometimes referred to as Dean Waste) for an order as against the plaintiff pursuant (i) to the inherent jurisdiction of the court declaring the trial herein to date a mistrial or (ii) an order dismissing the plaintiff's claim for failure to make discovery, pursuant to orders for discovery of 7 ^th December, 2007 and 23 ^rd July, 2009.

Background

2 2. Before I deal with these motions, I should say something of the proceedings. This action commenced before me on 7 ^th July, 2009. Mr. James Connolly, S.C. in his opening, informed the court that the plaintiff is a statutory authority and has obligations for the County of Wicklow in relation to the Waste Management legislation. The proceedings seek relief under s. 58(1)(a) of the Waste Management Act 1996 (as amended) as against the defendants for holding or disposing of waste in a manner that causes environmental pollution.

3 3. He stated that the background was that in November 2001, it was discovered by representatives of Wicklow County Council that unauthorised dumping was being operated at Whitestown quarry in Co. Wicklow and that the activities being carried on would normally require a licence under s. 39 of the Waste Management Act, that is a waste licence and no such licence existed. Wicklow County Council put in train technical investigations of the site and these investigations culminated in the issue of these proceedings by way of a special summons on 4 ^th March, 2005. Section 58, he said, effectively required a party against whom an order was made under the section to carry out remedial work in order to ensure appropriate protection of the environment. The lands with which the court is dealing, he said, in 2003, were owned by Mr. O'Reilly who represents himself in these proceedings. They are situated in the flood plain of the Carrigower River, that is a tributary of the River Slaney and they are also beside the N81, the public highway between Blessington and Baltinglass, that is in the western part of Co. Wicklow. The site measures 8.65 hectares, he said, and there is a worked out quarry on the site of 630,000sq m. Mr. O'Reilly's former dwelling house is on the site excluding which the nearest dwelling house on the landfill site was about 200m away. He said, Mr. O'Reilly originally owned the lands but in September 2003, he sold the lands to Brownfield.

4 4. The proceedings have been discontinued against Mr. Ray Stokes and Anne Stokes, who were directors of Brownfield. The proceedings were also discontinued against Mr. Louis Moriarty and Eileen Moriarty who are directors of Swalcliffe Limited, that is Dublin Waste, and also proceedings were discontinued against William John Campbell, Anthony Dean and Una Dean, the tenth, eleventh and twelfth named defendants. They were directors of Dean Waste, the eighth named defendant. The main parties before the court are Mr. O'Reilly, Brownfield, Swalcliffe and Dean Waste.

5 5. He said an Environmental Protection Agency licence was obtained in relation to the development of the site by Brownfield after they acquired the property in 2003. Dean Waste were substituted into the proceedings for A1 Environmental Management Limited. Dublin Waste and Dean Waste are waste companies who operate waste transfer stations in the Dublin area.

6 6. He claimed that Brownfield had the full notice of the problems in relation to the O'Reilly site at the time when they acquired it from Mr. O'Reilly. There had been a certain amount of media attention and Brownfield knew that there were problems with the site when they acquired it from Mr. O'Reilly. Wicklow County Council submitted that Brownfield were/are holders of waste and as such are liable as holders.

7 7. He said at various stages prior to Brownfield coming onto the site, Mr. O'Reilly had caused or permitted waste to be deposited on the site over a period of years as had Dean Waste and Dublin Waste. He said the contract of the sale of the O'Reilly lands was 16 ^th June, 2003 and they actually took possession on 16 ^th September, 2003.

8 8. The amount of the claim for compensation by the plaintiff was dependent upon whether the remediation was done on the site or offsite.

9 9. Dean Waste, whilst accepting that it dumped materials at Whitestown, denied it caused environmental pollution. Both defendants claimed that the dumping by the plaintiff's employees of waste on Mr. O'Reilly's lands was illegal and caused pollution. The plaintiff claimed any materials deposited/dumped by it were inert in nature.

10 10. The court was informed by Mr. Connolly that there were some 50 affidavits and as the procedure was by way of special summons, it was agreed that the affidavits were evidence in the case subject to cross examination of the various deponents.

11 11. The first four days of hearing were comprised of opening the affidavit exhibits and some primary legal submissions. The affidavits and exhibits comprised over 1750 pages. The hearing of this case was subject to case management directions by Clarke J. from December 2007.

12 12. The County Manager, Mr. Edward Sheehy, swore the grounding affidavit.

13 13. The plaintiff's principal...