B e f o r e :
LORD JUSTICE GLIDEWELL
LORD JUSTICE SCOTT
LORD JUSTICE EVANS
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GREENPEACE LIMITED |
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HM INSPECTORATE OF POLLUTION |
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MINISTRY OF AGRICULTURE FISHERIES AND FOOD |
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(Computer Aided Transcript of the Palantype Notes of
John Larking Verbatim Reporters, Chancery House, Chancery Lane
London WC2 Tel: 071 404 7464
Official Shorthand Writers to the Court)
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MR. OWEN DAVIES (Instructed by Sarah Jane Burton) appeared on behalf of the Appllicant
MR. K. PARKER QC (Instructed by the Treasury Solicitor) appeared on behalf of the Respondent
MR. G. NEWMAN QC and MR. A GRIFFITHS (Instructed by Freshfields, EC4Y 1HS) appeared on behalf of British Nuclear Fuels Plc (an interested party)
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HTML VERSION OF JUDGMENT
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Crown Copyright ©
Friday, 3 September 1993
J U D G M E N T
LORD JUSTICE GLIDEWELL: This is an appeal by Greenpeace Limited against a decision of Brooke J given two days ago on the afternoon of 1 September 1993, when, having granted to Greenpeace leave to appeal for judicial review of the decision of the Respondents, the Inspectorate of Pollution and the Ministry of Agriculture, Fisheries and Food, to issue a variation of an authorisation under the Radioactive Substances Act 1960 in relation to the premises of British Nuclear Fuels Limited at Sellafield, he then refused an application for a stay of the Departments' (as I shall call them) decision to issue the variation. It is against the refusal to grant a stay that this appeal lies.
Put shortly, the position is that the application concerns the thermal oxide reprocessing plant, THORP, which has been constructed by British Nuclear Fuels at Sellafield, formerly Windscale in Cumbria.
The proposed construction of that plant was the subject of a lengthy inquiry in the year 1977, after which an unusual statutory process was followed by which planning permission was given by Parliament for the construction of the plant. Construction then started and was completed in February of 1992. So far, the plant, which is designed for the reprocessing of nuclear fuel from certain nuclear power stations, has not operated.
There is already in existence an authorisation from the Department to operate the plant. It is, however, apparently common ground that, in the event, a new authorisation will be needed before the plant is operated as BNFL intend to operate it. Before that stage is reached, however, what BNFL wish to do is to go through a testing programme which will occupy approximately ten weeks. The evidence before us says that it is actually the fourth phase of a five-stage testing programme, the fifth stage of which will come after the final authorisation has indeed been given.
Rather than applying for a specific authorisation for the testing programme, BNFL applied to the Departments for a modification of the existing authorisation. It was that which was granted to them and which is the subject of the challenge by Greenpeace.
Before Brooke J neither BNFL -- who were not, of course, parties to the proceedings as such, but who had been notified and were present at the hearing -- nor the Department, objected to leave being granted by the learned judge. At present, a date has been fixed for the hearing of that application in substance by Otton J on 14 September of this year. We are told by Mr. Newman for BNFL that they are still pressing for a slightly earlier date, but we must work on the basis that the hearing will be on the 14th, with the judgment, presumably, shortly thereafter.
While they have not objected to the grant of leave, both the Department and BNFL are, I apprehend, going to argue strenuously that the substantive application should be refused. Indeed, Mr. Newman has now made it clear that they are going to argue that Greenpeace really have no locus standi to make this application at all.
Those, however, are not matters that need concern us because leave has been granted. On the application for a stay, the learned judge was in this initial difficulty: first of all, until recently as a general principle stays against Departments of the Crown were very rare creatures. The Judge, basing himself upon the decision of this Court in R v. Secretary of State for Education and Science Ex parte Avon County Council [1991] 1 QB 558, concluded that he did indeed have jurisdiction to grant a stay. The matter has not been canvassed before us and the hearing has proceeded on the basis that the Judge did indeed have jurisdiction, had he been minded to grant a stay.
That then, however, raised for the Judge this difficult question (on which, so far as I know, there is no authority of this Court): where it is sought to stay a decision of a government department, and the effect of granting the stay will be to affect detrimentally the operations of a third party who are not parties to the proceedings, what is the proper approach for the Court, from which the stay is sought, to adopt?
If the third parties are made third parties to the proceedings, as they could be, and if an interlocutory injunction were sought against them, then the answer to the question would be clear: the Court would then apply the normal principles it applies when an interlocutory injunction is sought, those laid down in American Cyanamid [1975] AC, 396.
In this case, that did not happen because BNFL were not made parties and no interlocutory injunction has been sought against them. It is quite clear, in my view, that Brooke J treated this application for a stay, in a sense, as if it were an application for an interlocutory injunction against British Nuclear Fuels, and he applied the principles he would have applied had he been considering such an application. In my judgment, he was entirely right to do so. If third parties are to be affected by decisions on applications for a stay and not directly made parties by way of applications for an injunction against the particular third party, then, in my view, nevertheless, the same principles should be followed.
The matters which the learned judge took into account in exercising his jurisdiction on those principles were these: firstly, a major reason for not granting a stay is that it was the governmental body charged with the task of deciding upon whether this plant could properly and safely be operated which had issued the amendment to the authorisation, that is to say, Her Majesty's Inspectorate of Pollution and the Ministry of Agriculture Fisheries and Food.
There was evidence before the judge as there is before us, that the additional radioactive discharge from the plant which will result from this testing process taking place will not be uncountable, but will be very small indeed. Moreover, the evidence is that it will not require any alteration of BNFL's existing authorisation to discharge radioactive material either into the air or in liquid form into the sea. Those discharges will be contained within the volumes permitted by those authorisations.
Added to that, the Judge had evidence which clearly impressed him that if, as a result of a stay, the commissioning testing process is held up and, in the end, BNFL are permitted to go ahead with the operation of THORP, there is at least a risk -- they put it higher than that; they say it is probable -- that they will suffer a loss as a result of the delay. They quantify that at approximately £250,000 a day. Presumably they are already suffering loss as a result of not having got the plant into operation since it was completed in February 1992. That is the sort of figure that they are claiming.
It is not, of course, entirely clear that they will necessarily suffer a loss if they are subjected to two weeks' delay, because the process of making a decision as to whether they can go ahead with the operation of THORP after the testing procedure is still subject to decisions of Ministers which, even if they come down in favour of BNFL, will not necessary be made in a timescale which would result in a delay for two weeks or so having any effect at all. Nevertheless, there was the evidence and it impressed Brooke J.
On the other hand, he had to balance that against the very real concern of members of Greenpeace. There was evidence -- which Greenpeace are presumably going to adduce at the hearing before Otton J and at any other hearings which are open to them -- challenging the scientific evidence which was accepted by the Department. Put very shortly, if I understand it correctly, it is Greenpeace's stance that any additional emission of irradiated material into the atmosphere, is harmful and should not be permitted unless there is some clear benefit. They argue that THORP has no beneficial effect. It exists purely to enable British Nuclear Fuels to make money.
Those are the battle lines and those are the points which the learned judge had to weigh. As I have said, he weighed them upon normal principles. In the end he made his decision on the basis of the balance of convenience. At the end of his judgment he said:
"Balancing, as I must, all the arguments that have been brought before me when I decide how to exercise my discretion to grant a stay, I am bound to say that I am very considerably influenced by the evidence which BNFL have put before the Court as to the likely financial loss they will suffer, and as to Greenpeace's likely inability to pay for that financial loss, if BNFL can indeed show -- about which I express no view at all -- that a delay in operating the plant for a fortnight will incur losses of this kind, coupled with the expert view of the Inspectorate and Ministry as to the minimal effect of the level 4 commissioning of THORP."
At the hearing before the learned judge, no offer was made by Greenpeace to give an undertaking as to damages suffered by BNFL should they suffer any; the sort of undertaking that would normally be required if an interlocutory injunction were to be granted.
I bear in mind that the judge said that he was influenced by the evidence about Greenpeace's likely inability to pay for that financial loss, but he had earlier remarked that he had not been offered an undertaking. If we were dealing with this matter purely on the material which was before the judge, I would find no difficulty at all. This was essentially a matter for the discretion of the judge. On that basis there would be nothing which would entitle us to say that the judge was clearly wrong or failed to take into account any relevant consideration and thus we could not possibly differ from the exercise of that discretion.
It is, however, said that there are two related new matters which do entitle us to take a completely different approach. The first is that there was produced before us when we had a first initial hearing of this matter on the evening of the same day as the judge gave his decision, 1 September, a document produced at the request of Mr. Shuttleworth, representing BNFL, by a Mr. Hallington who is the Commissioning Support Manager, which made it clear that the present testing process is going to be in three phases.
The first phase -- what is called "initial activities" -- putting it shortly (and, I hope, not too inaccurately) involve charging vessels in the plant with uranium nitrate; that will occupy seven days. That process started yesterday morning and so, presumably, on that timescale, will be completed by Thursday morning of next week.
The second phase, which is expected to last some five weeks thereafter, up to the end of the sixth week, involves starting up the evaporator, which involves a more intensive use and testing of the plant.
The initial phase, it is said, will create no liquid effluent and an infinitesimal level of aerial activity; the second phase will create some liquid effluent and an estimate of aerial discharge which is given in the letter.
I remind myself that they are still within the very small amount to which the evidence relates, but obviously the second phase is going to create relatively a greater quantity of discharge than the first.
It has been suggested to us by Mr. Davies, that, even if we feel unable to disagree with the judge as to the totality of the stay, that it would, nevertheless, be possible and proper to adopt a halfway position -- my phrase not his -- by granting a stay which would take effect at the beginning of the second phase of this testing on Thursday of next week, to operate until Otton J gave his decision which would, presumably, be over a period of five or six days in total.
The basis of Mr. Davies' argument is that, in that way, the somewhat more detrimental discharges would be avoided, and, at the same time, the total loss to BNFL, if any, would obviously be substantially less because the delay: instead of being 14 days, it would be, as I have said, five or six.
He urges upon us that that presents us with a new situation and creates new factors which we could properly take into account to enable us to exercise our discretion afresh without in any way trespassing upon the normal principles on which this Court acts, when it is considering the exercise of a judge's discretion.
To that Mr. Newman replies that the argument of Mr. Davies is simply, with respect to him, illogical. He submits that since the judge, taking into account whatever risk there was from a discharge over the period until Otton J's hearing, balancing the points made against granting the stay, decided that the balance of convenience did not favour granting a stay, we could not possibly conclude that for a lesser period of discharge and for a lesser amount of discharge, the balance of convenience did justify granting a stay; if we did we should simply be tinkering improperly with the exercise of the judge's discretion.
Mr. Newman reminds us of a passage from the speech of Lord Diplock in Hadmor Productions Ltd v Hamilton [1983] AC 191, in which his Lordship said:
"... I cannot agree that the production of additional evidence before the Court of Appeal ... is of itself sufficient to entitle the Court of Appeal to ignore the judge's exercise of his discretion and to exercise an original discretion of his own. The right approach by an appellate court is to examine the fresh evidence in order to see to what extent, if any, the facts disclosed by it invalidate the reasons given by the judge for his decision. Only if they do, is the appellate court entitled to treat the fresh evidence as constituting in itself a ground for exercising an original discretion of its own to grant or withhold the interlocutory relief."
Mr. Newman submits that there was nothing in the fresh evidence which invalidates the reasons given by the judge for his decision. Having been swayed initially, I must confess, by Mr. Davies' persuasive argument to the contrary, I find myself in agreement with Mr. Newman's argument.
For those reasons, I conclude that we are not in a position, even if we wished to, to disagree with the exercise by Brooke J of his discretion not to grant a stay and I would dismiss the appeal.
LORD JUSTICE SCOTT: I agree. At the end of the transcript of Brooke J's judgment there appears this note:
"Leave to appeal was granted on the basis that the judge said he considered that the principles on which judges exercised their discretion in public law cases on interlocutory applications warranted the consideration of the Court of Appeal."
The application, now on appeal before us, that prompted that note was an application for interlocutory relief. The interlocutory relief in question is "a stay of the decision of the Inspectorate of Pollution and the Ministry of Agriculture, Fisheries and Food, made on 25 August 1993, to authorise British Nuclear Fuels to commence the commissioning of the Sellafield Plant".
The evident purpose of the application for interlocutory relief is to prevent British Nuclear Fuels from commencing the commissioning that, pursuant to the authorisation granted on 25 August, they are entitled to commence. The purpose is to prevent them commencing that commissioning, pending the determination of the question whether the decision is or is not tainted with some degree of illegality and ought to be set aside.
This interlocutory purpose could as well, and in my opinion more straightforwardly, have been pursued by means of an application against British Nuclear Fuels, who would first have had to be made a party to the proceedings, for an interlocutory injunction.
In my opinion, if the real purpose of interlocutory relief in a judicial review case is to prevent executive action by a third party being carried out pursuant to the decision under attack, the more suitable procedure would be to have the third party in question joined and then to seek an interlocutory injunction against that party, rather than to seek a stay of the decision. If, however, the purpose is pursued, as it has been in the present case by an application for a stay of the decision rather than by an application for an interlocutory injunction against the third party, the Courts should, in my opinion, look to the substance rather than to the form, and apply the same principles to the application as would have been applicable had the application been for an interlocutory injunction.
Brooke J dealt with the application for a stay which was before him in a manner that seems to me to have been indistinguishable from the manner in which he would have dealt with an application for an interlocutory injunction. In dealing with the application in that way, the judge took into account the possible effect of the stay upon British Nuclear Fuels; he took account of the fact that no cross-undertaking in damages had been offered; he took account of the evidence as to the degree of contamination that commissioning might cause, and he took account of the opinion of the Inspectorate. In applying himself in that manner to the matter before him, in my judgment, the judge acted correctly and applied the correct principles.
Mr. Owen Davies has argued that, where interlocutory relief in the form of a stay is sought in judicial review proceedings, a requirement that an undertaking in damages be given as a condition of the grant of the interlocutory relief, is not in accordance with practice and is inappropriate.
I make no comment on previous practice in this regard. Mr. Owen Davies may well be right. But if the purpose of the interlocutory stay is, as here, to prevent executive action by a third party in pursuance of rights which have been granted by the decision under attack, then, in my judgment, to require a cross-undertaking in damages to be given is, as a matter of discretion, an entirely permissible condition of the grant of interlocutory relief and in general, I would think, unless some special feature be present, a condition that should be expected to be imposed. Therefore, I think that Brooke J directed himself correctly in taking into account the matters regarding British Nuclear Fuels' financial position and regarding the absence of a cross-undertaking to which I have referred.
As to the additional material placed before this Court and the question whether that material entitles this Court to grant, either in whole or in part, the stay that the judge has refused to grant, I agree with and would not wish to add anything to, what my Lord, Lord Justice Glidewell, has already said.
I agree that the appeal should be dismissed.
LORD JUSTICE EVANS: I have the misfortune to differ from my Lords on one point, but I should emphasise that otherwise I would adopt and gratefully acknowledge their analysis of the issues.
The circumstances now are different from what they were when the matter came before Brooke J only two days ago. The first difference is that details of the testing process are now known from a document which was produced to us on Wednesday evening by Mr. Newman QC (counsel for British Nuclear Fuels) and subsequently exhibited by Mr. Shuttleworth in his second affidavit.
What the document shows which is relevant for present purposes, is that phase 1 of level 4 of the commissioning process involves a straightforward process of transferring the uranium nitrate by road tanker to (what I will call, I hope, accurately) the "site tankage". The second change is that that phase 1 has now started. British Nuclear Fuels started it following their successful resistance to the application for a stay pending the hearing of this appeal on Wednesday evening.
Phase 1 is estimated to occupy seven days and will, therefore, on the face of it, be completed on Thursday next, September 8. The issue before us now, for practical purposes, is whether British Nuclear Fuels should then proceed to stage 2, which involves commencing the process of priming the evaporator. It seems to me that that involves the beginning of the process of introducing uranium into the machinery if, as I hope, that is an accurate way of describing it.
Before Brooke J, the question was whether the start should be delayed for 14 days. There is no indication that he knew anything of the different stages which were involved. I respectfully agree that we cannot fault his decision and should not interfere with it.
Now the question is whether on Friday next, September 10, British Nuclear Fuels should proceed to stage 2 or whether they should wait until the conclusion of the hearing before Otton J on September 13.
The transition from phase 1 to phase 2 represents, as I understand the evidence, a considerable threshold. At stage 1 there is said to be an infinitesimal level of emission, no contamination of the machinery and no effluent which will require subsequent disposal. It is at stage 2 that the risks which the Applicants apprehend will begin. Moreover, the loss suffered by British Nuclear Fuels, if any, as a result of a stay, will consist of four or five days' delay in about mid-November upon a number of major assumptions which I need not rehearse here.
Mr. Newman QC says that this issue is encompassed by the learned Judge's decision. I respectfully disagree. I do not know what the judge would have said if he had been told that stage 1 could proceed without risk, or without any substantial risk, but had been asked to delay stage 2 by a mere four or five days.
That is the present situation and, in my judgment, the Court's discretion should be exercised in these circumstances in favour of the Applicants to that extent. I should also feel that we were entitled to substitute our own answer to that different question in the circumstances which I have outlined.
Order:Costs awarded to both Respondents and BNFL.
