Constance Short, Mary Kavanagh, Mark Dearey and Ollan Herr (respondents) v Ireland and The Attorney General (defendants) and British Nuclear Fuels plc (appellant) and Secretary of State for the Environment (notice party).
Practice and Procedure - Public international law - European law - Appeal against leave to serve proceedings outside jurisdiction - Appellants sued by Irish citizens for damage caused in Ireland by activities in UK nuclear plant - Whether respondents had established arguable case - Whether appellant was proper person to be served - Whether Irish Courts had jurisdiction in the matter.
The Supreme Court (before the Chief Justice Mr Justice Hamilton, Mr Justice O'Flaherty, Mr Justice Blayney, Mrs Justice Denham, Mr Justice Barrington); judgment delivered 24 October 1996.
THE standard test to be applied, when considering whether to allow service out of the jurisdiction under Order 11 Rule 1 paragraph (h) of the Rules of the Superior Court 1986, was whether the person out of the jurisdiction would, if he were within the jurisdiction, be a proper person to be joined as a defendant.
The Supreme Court so held in refusing to discharge an order of the High Court which gave the respondents leave to serve a plenary summons on the appellant out of the jurisdiction and refusing to dismiss the proceedings for want of jurisdiction.
Eoin McGonigal SC, Michael Forde SC, Paul Callan SC and Seamus O'Tuathail BL for the respondents; Paul Sreenan SC and Feithin McDonagh BL for Ireland and the Attorney Genuat Paul Gallagher SC and Donal O'Donnell SC for the appellant.
MR JUSTICE BARRINGTON, delivering the unanimous judgment of the court, said that all the respondents lived in County Louth and brought this action on their own behalf and on behalf of their families and the "unborn". Outlining the background to the case, he said that the appellant was a limited company, the shares of which were held by or on behalf of the United Kingdom through its Secretaries of State. It had been established to facilitate the commercial development of nuclear fuel which it did at Sellafield in Cumbria. In 1978 the appellant applied for and after a public inquiry obtained planning permission for a thermal oxide reprocessing plant ("Thorp"), the building of which was completed in February 1992. Mr Justice Barrington said that the respondents all lived on the east coast of Ireland and claimed that the Thorp operation had already cost considerable health and environmental damage along with economic loss in the general area where they lived. In addition the respondents claimed that before carrying out the Thorp project the appellant should have carried out an environmental impact assessment as required by Council directive 85/337. Furthermore the respondents claimed that appellant was in breach of its obligations under Council directive 80/836 to provide a justification for the project. The respondents sought declaratory relief to that effect along with injunctive relief restraining the appellant from carrying out its activities. Mr Justice Barrington said that the respondents' application for service out of the jurisdiction had been supported by affidavits from two experts. The first was from an engineer who gave his professional opinion that the operation was likely to cause grave long term detriment to the respondents. The second was from a medical practitioner in the Louth area who had carried out extensive research into the physical abnormalities detected in her patients and had concluded that their likely cause was the Sellafield plant. On this basis, Mr Justice Barrington felt that the High Court had been right in holding that the respondents had established a "good arguable case" for the purposes of an application for service out of the jurisdiction.
The respondents' basic claim was, Mr Justice Barrington said in the nature of a tort. Thus any application for service of the proceedings out of the jurisdiction came within the terms of Order 11 of the Rules of the Superior Courts 1986. Order 11 Rule 1 paragraph (h) permitted service out of the jurisdiction where the person out of the jurisdiction would if he were within the jurisdiction, be a proper person to be joined as a defendant in the action against the other defendants. The court was satisfied there was no doubt that if the appellant were resident within this jurisdiction, it would be a proper defendant in the present case. In addition the High Court had determined that the balance of convenience lay in favour of trying the case in the Irish court Therefore the court was satisfied that if the claim was to be regarded as a tort or quia timet action, the case for service out of the jurisdiction under Order 11 had been made out.
Mr Justice Barrington said that the main point raised by the appellant was that the Irish courts had no jurisdiction to deal with the respondents' complaints or, if they had, they should decline jurisdiction. The appellant claimed it had complied with all the appropriate procedures in the United Kingdom and had successfully resisted a challenge to their operations in the English courts. In those circumstances the appellant claimed that for the Irish courts to entertain the present case would be, in effect, to interfere with the decisions of a neighbouring sovereign power. Mr Justice Barrington said it was true that the activities complained of took place in the United Kingdom but he felt it was the allegedly harmful results of these activities, in the area where the respondents resided, which gave rise to the respondents' cause of action. Thus the court was satisfied that the Irish courts had jurisdiction to attempt to give the respondents relief without trespassing on the jurisdiction of the courts of any neighbouring state. Mr Justice Barrington went on to say that, if the case came to be discussed as a case governed by European law, problems could arise if the appellant sought to rely on a British administrative decision to justify its operations. In conclusion, the court felt that the questions raised by the proceedings were too complex and difficult to be disposed of on a motion to dismiss for want of jurisdiction and should be left to the trial judge to decide after full debate.
Solicitors: MacGuill & Co (Co. Louth) for the respondents; Chief State Solicitor for Ireland and the Attorney General; McCann Fitzgerald (Dublin) for the appellant.
