Court finds for BNFL over Sellafield

A 10-year legal battle in the Irish courts aimed at procuring the closure of the Sellafield nuclear reprocessing plant may have come to an end after the High Court yesterday found it had no jurisdiction to hear the case.

Four residents from Co Louth could now face a legal bill of more than €1 million after British Nuclear Fuels Limited (BNFL) won its claim that the Irish courts have no jurisdiction to hear the action.

However, the residents, who initiated their challenge in 1994, are considering whether to appeal the High Court decision to the Supreme Court.

Recent disclosures about operations at Sellafield have further underlined the importance of the case, a spokesman for the group said.

The proceedings have been adjourned to May 25th next to allow the sides consider the decision. The issue of the substantial costs of the matter may be determined then.

In his reserved judgment yesterday, Mr Justice Peart found the High Court does not have jurisdiction to decide if the THORP nuclear reprocessing plant at Sellafield should have been subject to an Environmental Impact Assessment (EIA) in line with EU directives.

The four residents had claimed Britain failed to observe EU directives in relation to the reprocessing plant and wanted an injunction from the High Court directing BNFL to comply with those directives.

They were also seeking damages for alleged assault, nuisance, trespass and negligence.

BNFL had claimed the Irish courts could not pronounce on or invalidate the regulatory procedures adopted and fulfilled by the sovereign bodies of another EU member-state.

The four persons taking the action against BNFL are Ms Constance Short, Ms Mary Kavanagh, Mr Mark Deery and Mr Ollan Herr. They have also taken proceedings against Ireland and the Attorney General alleging the State failed to take action, including legal action, to prevent the THORP plant coming into operation.

The residents initiated their action after the development of the THORP facility (Thermal Oxide Reprocessing Plant) at Sellafield in the early 1990s.

In February 2003, the President of the High Court said the residents' statement of claim disclosed two separate actions - one against the State and the second against BNFL - and he directed that a number of preliminary issues be determined in both actions.

In relation to the case against BNFL, he directed that the High Court should decide whether it had jurisdiction to declare whether THORP should have been subject to an EIA within the meaning of EC Council Directive 85/337 and/or that it should have been subject to a "justification procedures" as provided by Euratom directives.

The High Court was also asked to decide whether it had jurisdiction to grant a mandatory order compelling BNFL to comply with those directives and other matters.

When those issues were being argued before Mr Justice Peart, lawyers for the residents argued that previous decisions of the High and Supreme Courts were to the effect that the High Court had the necessary jurisdiction to make the declarations and orders sought.

However, Mr Justice Peart held that, while the issue of jurisdiction of the Irish courts was argued in the High and Supreme Courts, the judgments from both fora did not directly address the jurisdictional issue but had rather decided that the residents' claims are in the main claims in tort (for a private or civil wrong).

Dealing with the jurisdictional points raised by BNFL, the judge held the Irish High Court has no jurisdiction to make any finding which either directly or indirectly finds, or is dependent on, a finding that a foreign administrative decision is invalid.