Shell E&P Ireland allowed five Rossport men to languish in prison for several weeks after the company had agreed to cease work on its controversial onshore gas pipeline pending the outcome of a safety review by the Minister for the Marine and Natural Resources, the High Court was told yesterday.
It had emerged from documents that Shell had agreed with the Minister in early July 2006 to stop work on the pipeline pending compliance issues and the outcome of the safety review.
However, it was only in September 2006 that the company applied to the High Court to have the five men released, citing the suspension of work and the safety review as the basis for its application, Ms Justice Mary Laffoy was told.
The men had spent 94 days in prison before they were freed.
Such factors should be taken into account by the court in considering its attitude to Shell's application to discontinue an action brought against opponents of the gas pipeline, Lord Brennan QC, for Brendan James Philbin and Breege McGarry, said yesterday. Shell's behaviour was relevant to his client's counterclaim for damages against Shell, he contended.
Even if the injunction sought against the men - known as the Rossport Five - last year was justifiable, and his side contended it was not, the imprisonment was too long, Lord Brennan added.
Mr Philbin, Ms McGarry, Willie Corduff and Philip McGrath are the four remaining defendants involved in legal proceedings with Shell E&P arising from their opposition to the proposed route of the pipeline through their lands at Rossport.
Two other defendants, Peter Sweetman and Monica Muller, agreed last year to withdraw their counterclaims and Shell's claim against them was struck out on the basis that Shell would pay their legal costs.
Patrick Hanratty SC, for Shell, applied to Ms Justice Laffoy yesterday to discontinue its long-running legal action against opponents of the pipeline.
Mr Hanratty said the action was no longer necessary and had become "academic and redundant" in light of its agreement to modify the route of the controversial pipeline following a recommendation to that effect by a Government-appointed mediator, Peter Cassells.
Mr Hanratty said Shell had written to all six defendants with an offer that if the counterclaims were discontinued, the company would pay their costs.
Mr Sweetman and Ms Muller had agreed to withdraw their counterclaims, while the remaining four others had not.
Mr Hanratty said the new pipeline route would not be identified until next autumn, as many technical issues had to be taken into account first. New compulsory acquisition orders (CAOs) would have to be sought in relation to lands of the defendants if the pipeline crossed those lands.
Mr Hanratty added that Shell was making a conscious effort to achieve maximum consensus with local landowners and the community for the new pipeline.
James Connolly SC, for the State, said there were "issues of public law" arising out of the dispute that needed to be addressed.
As part of their counter claims, the defendants had alleged that Shell had trespassed on private property at Rossport, Mr Connolly said. Shell said it had consent to enter the properties on the basis of CAOs that were granted in May 2002 and an order under section 40 of the Gas Act signed in April 2002.
The issue of the validity of the CAOs and of the order made under the Gas Act should be determined separately because the State did not want to get involved in what was a private dispute between Shell and the defendants, Mr Connolly added.
Lord Brennan said his clients wanted terms attached to any discontinuance of Shell's action.
These included that there should be an inquiry into damages relating to the circumstances surrounding the application last year for the injunction against the Rossport Five; that the onus of proof should be on Shell in relation to proving the validity of the CAOs; that Shell should pay the defendants' costs to date, perhaps on a solicitor-client basis (the highest level of legal costs), and that Shell should not, at this point, be allowed to rely on contempt of court orders in relation to costs issues.
Lord Brennan contended that the consent for Shell's entry on to lands at Rossport land was on "rocky ground". He also argued that CAOs acquired in May 2002 were acquired under the wrong statutory provisions.
Frank Callanan SC, for Mr McGrath and Mr Corduff, said it was difficult to see how Shell should not be liable for costs.