Sean Quinn Group Ltd (plaintiff) v An Bord Pleanala, the Environmental Protection Agency, the Minister for the Environment, Ireland , the Attorney General and Lagan Cement Limited (defendants).

Practice and Procedure - Application to dismiss proceedings - Criteria to be applied - Role of the courts - Public policy - Abuse of process - Inherent jurisdiction of High Court - Whether court should take bona fide litigants into consideration.

The High Court (before Mr Justice Quirke); judgment delivered 4 October 2000.

In assessing whether or not to accede to an application to dismiss proceedings on the grounds that they constituted an abuse of process a number of factors fell to be considered. It must be established that the plaintiff in commencing the proceedings (1) had an ulterior motive, (2) was seeking a collateral advantage for itself beyond what the law offered, and (3) had instituted the proceedings for a purpose which the law did not recognise as a legitimate use of the remedy which had been sought. In this instance the plaintiff's motive in instituting these proceedings was confined exclusively to the achievement of a commercial objective which was an advantage over a competitor. The proceedings had been initiated for an improper purpose, constituted an abuse of process and accordingly the application of the sixth defendant to dismiss the proceedings would be granted.

The High Court so held in granting the relief sought and dismissed the plaintiff's claim.

Ian Finlay SC and Eoin McCullough BL for the plaintiff; Nuala Butler BL for the first defendant; James Connolly SC and Niamh Hyland BL for the third, fourth and fifth defendants; Rory Brady SC and Denis McDonald BL for the sixth defendant.

Mr Justice Quirke outlined the facts of the case. The plaintiff was a limited liability company which engaged in the manufacture, distribution and sale of cement in Northern Ireland and which recently had commenced similar operations in County Cavan. The plaintiff was seeking declaratory and other relief against the defendants arising out of an order dated 14 April 1999 whereby Meath County Council decided to grant permission to the sixth Defendant, Lagan Cement Limited ("Lagan") for the construction and development of a cement manufacturing installation and factory at Killaskillen in Kinnegad in County Meath. Certain parties who are not privy to these proceedings appealed the order of Meath County Council to the first Defendant ("the Board") which indicated its intention to make a decision by way of a determination of that appeal in April 2000.

The plaintiff had also sought an interlocutory injunction restraining the Board pending the resolution of these proceedings from determining that appeal. The High Court had refused this relief on 12 April 2000 on grounds inter alia that, since the conduct of the plaintiff in connection with Lagan's planning application had been wholly inconsistent with an equitable objective, the plaintiff was not entitled to relief of an equitable nature. This present application, which was made concurrently with the plaintiff's application for interlocutory relief, was made on behalf of Lagan for an order dismissing the proceedings herein on the grounds that the proceedings comprised an abuse of the process of the courts and were vexatious in nature. The application was supported by the Board and by the third, fourth and fifth defendants ("the State").

Mr Justice Quirke made the following findings of fact. In December 1998, the plaintiff, by its agent Mr Sean Quinn was fully aware of Lagan's impending application for planning permission and of its full nature and extent. Mr Quinn had been advised professionally in respect of Lagan's application and admitted during a newspaper interview that the plaintiff was preparing to object to that application. In December of 1998 the plaintiff was making covert payments to a group called the Ballinabrackey Residents Action Group (totalling £30,000) to fund legal proceedings which had been commenced by a Ms Goonery for the purposes of seeking to restrain Meath County Council from determining Lagan's application for planning permission. Those proceedings were compromised on 10 March 1999 on terms which included the payment of £50,000 from Lagan to Ms Goonery as a contribution towards her costs of those proceedings. On 11 May 1999 Ms Goonery commenced new judicial review proceedings seeking relief which was virtually identical to the relief which was being sought on behalf of the plaintiff in the present application. An interim injunction obtained by Ms Goonery ex parte in those proceedings was discharged by Mr Justice Kelly in the High Court.

Mr Justice Quirke stated that the plaintiff had actively concealed its participation in the proceedings commenced by Ms Goonery and no adequate explanation had been offered to the court for the plaintiff's failure to disclose openly its interest in those proceedings. The instant proceedings were commenced by plenary summons dated 1 December 1999 which was seven-and-a-half months after the date upon which Lagan was granted permission for its development and approximately 12 months after a time when the plaintiff had become fully conversant with the full nature and extent of the Lagan application and the remedies available. Mr Justice Quirke also stated that although the plaintiff was probably aware shortly after 16 November 1998 of the nature and extent of Lagan's proposed development, it had taken no steps to seek to restrain the grant of the planning permission to Lagan by Meath County Council and thereafter had not sought to challenge the grant of planning permission made in April 1999 by Meath County Council to Lagan. The plaintiff's own cement manufacturing installation and factory at Cavan had been constructed on foot of planning permission granted by the Board on 13 June 1998 and would operate pursuant to the provisions of an integrated Pollution Control Licence granted by the second defendant ("the EPA") on 13 November 1998.

Mr Justice Quirke was satisfied from the evidence that in pursuing its claim the plaintiff's sole objective was to further its own commercial interest by gaining an advantage over Lagan which it regarded as a formidable business competitor. While it had been argued that the plaintiff's motivation in commencing these proceedings was to avoid damage to its interests it was quite clear that the damage which the plaintiff apprehended was a reduction in or loss of profits. The plaintiff had not put forward any arguments relating to the avoidance of damage to the environment within the areas adjacent to the proposed development or arguments relating to the proper planning and development of County Meath.

Mr Justice Quirke then discussed the inherent jurisdiction of the courts to strike out proceedings as being an abuse of process. The use of such a power in appropriate cases had not been questioned. However in McCauley v McDermot [1997] 2 ILRM 486 Mr Justice Keane emphasised, at page 498, the need to exercise this jurisdiction "only with great caution". The parties in the proceedings had referred to a number of authorities in support of their respective contentions which included the cases Goldsmith v Sperrings Ltd [1977] 2 ALL ER 566, Castanho v Brown & Root (UK) Ltd & Another [1981] 1 ALL ER 143 and Wallersteiner v Moir [1974] 3 ALL ER 217. The parties were however unanimous in adopting the following extract from the judgment of Lord Justice Scarman in Goldsmith v Sperrings Ltd [1977] 2 All ER 566, at page 582: "In the instant proceedings the defendants have to show that the plaintiff has an ulterior motive, seeks a collateral advantage for himself beyond what the law offers, is reaching out `to effect an object not within the scope of the process': Grainger v Hill (1838) 4 Bing NC 212 at 221, per Tindle CJ. In a phrase, the plaintiff's purpose has to be shown to be not that which the law by granting a remedy offers to fulfil, but one which the law does not recognise as a legitimate use of the remedy sought: see Re Majory [1955] 2 ALL ER 65, 78."

Mr Justice Quirke stated, bearing in mind the warning given by Mr Justice Keane in McCauley v McDermot, that for Lagan's application to succeed a number of conditions must be satisfied. By way of evidence it must be established that the plaintiff in commencing the proceedings (1) had an ulterior motive, (2) was seeking a collateral advantage for itself beyond what the law offered, and (3) had instituted the proceedings for a purpose which the law did not recognise as a legitimate use of the remedy which had been sought. In the present case Mr Justice Quirke, taking (1) and (2) above together, was satisfied that the evidence adduced had established conclusively that the plaintiff's motive in instituting these proceedings was confined exclusively to the achievement of a commercial objective which was an advantage over a competitor.

The remedies offered by the law by way of declaratory and injunctive relief and by way of judicial review of orders and decisions were remedies which could be legitimately used by litigants for a variety of different purposes. The fact that the legitimate use by a litigant of a lawful remedy may result in a collateral benefit to the applicant did not affect the right of the applicant to seek such a remedy in the courts. This applied even to cases where the principle motivation for the application was a collateral benefit for the applicant. Quite clearly a business man could apply to the courts and seek relief restraining a competitor from an unlawful activity even where the principal object was the achievement of a commercial advantage. However in most of these cases it was the unlawful activity itself which was sought to be restrained which had resulted in commercial advantage to the party in question. The applicant seeking the remedy had a bona fide grievance and was seeking to right a perceived injustice or to redress a perceived wrong.

However in the present case a fully resourced and informed applicant had already availed of the precise planning process which it now sought to impugn a startlingly short time before commencing these proceedings. With regard to the concurrent application of the plaintiff for injunctive relief the plaintiff had raised a point of law which was sufficiently arguable so that the application did not come within the category of frivolous or vexatious applications which should be dismissed on such grounds. To determine whether the plaintiff, by bringing these proceedings, was using the legal process in a proper or improper fashion Mr Justice Quirke referred to a passage from Re Majory [1955] 2 ALL ER 65, at page 78, where Evershed MR described the so called "rule" in bankruptcy as: " . . . in truth, no more than an application of a more general rule that court proceedings may not be used or threatened for the purpose of obtaining for the person so using or threatening them some collateral advantage to himself and not for the purpose for which such proceedings are properly designed and exist, and a party so using or threatening proceedings will be liable to be held guilty of abusing the process of the court, and, therefore, disqualified from invoking the powers of the court by proceedings which he has abused."

In Cavern Systems Dublin Ltd v Clontarf Residents Association and Dublin Corporation [1984] ILRM 24, Mr Justice Costello at page 30 had held that the conduct of a litigant who had consciously failed to serve or disclose the existence of proceedings which it had validly issued had not only flouted the will of Parliament but "the absence of reasonable cause to justify what happened" comprised conduct which would be regarded as an abuse of the process of the court. In Lonrho plc v Fayed and Others (No 5) [1993] 1 WLR 1489 Lord Justice Stuart-Smith refused to strike out the plaintiff's claim on grounds that it comprised an abuse of process but was careful to observe (at page 1502) that: "If an action is not brought bona fide for the purpose of obtaining relief but for some ulterior or collateral purpose, it may be struck out as an abuse of the process of the court. The time of the court should not be wasted on such matters, and other litigants should not have to wait till they are disposed of. It may be that the trial judge will conclude that this is the case here; in which case he can dismiss the action then. But for the court to strike it out on this basis at this stage it must be clear that this is the case."

Mr Justice Quirke commented that in considering such applications such as the present one the courts may (and perhaps should) take into account the interests of bona fide litigants who, regrettably often had to compete for comparatively scarce court time in order to have important matters litigated to a conclusion. It was consistent with proper public policy that the interests of such bona fide litigants should have precedence over the rights of parties who wish to litigate points of law which sometimes (as in the present case) were wholly or largely technical in nature and often flimsy in substance for purposes unconnected with public benefit and wholly concerned with private gain. In the present case Mr Justice Quirke was satisfied on the basis of evidence tendered that the proceedings had been commenced by the plaintiff in a cynical, calculated and unscrupulous fashion for the sole purpose of seeking a commercial advantage over its competitor, Lagan. Furthermore the present proceedings had not been instituted to redress a wrong or a grievance or to ensure the proper and lawful planning and development for any particular area or for any other commendable, environmental or civic spirited reason. The sole purpose of the proceedings in being was to inflict damage upon its competitor Lagan and was both an improper purpose for the commencement of proceedings and an improper use of the process of the courts.

The jurisdiction which Mr Justice Quirke was exercising, bearing the warning issued by Mr Justice Keane was a jurisdiction which must "be exercised with great caution at an early stage of the proceedings". However, for the foregoing reasons the proceedings instituted had been commenced for the purpose of achieving an end which was improper in itself and that they therefore comprised an abuse of the process of the courts. Accordingly the plaintiff's claim against the defendants was dismissed.

Solicitors: Dunne Ryan & Co (Cavan) for the plaintiff; T. T. L. Overend McCarron & Gibbons (Dublin) for the first defendant; the Chief State Solicitor for the third, fourth and fifth defendants; Arthur Cox (Dublin) for the sixth defendant.