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Cite as: [2006] 3 IR 623, [2006] IEHC 273, [2006] 9 JIC 0801

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Neutral Citation Number [2006] IEHC 273

THE HIGH COURT

[2005 No. 89 SP]

IN THE MATTER OF THE WASTE MANAGEMENT ACTS 1996 TO 2003

IN THE MATTER OF SECTION 58 OF THE WASTE MANAGEMENT ACT 1996 (AS AMENDED BY SECTION 49 OF THE PROTECTION OF THE ENVIRONMENT ACT 2003) AND

IN THE MATTER OF AN APPLICATION BY WICKLOW COUNTY COUNCIL

BETWEEN

WICKLOW COUNTY COUNCIL

PLAINTIFF

AND

JOHN O'REILLY BROWNFIELD RESTORATION IRELAND LIMITED,

RAYMOND STOAKES, ANN STOAKES,

SWALCLIFFE LIMITED TRADING AS DUBLIN WASTE,

LOUIS MORIARTY, EILEEN MORIARTY,

SUBSTITUTED BY ORDER DEAN WASTE COMPANY LIMITED

WILLIAM JOHN CAMPBELL, ANTHONY DEAN, UNA DEAN,

AND BY ORDER SAMUEL STEERS

DEFENDANTS

JUDGMENT of Mr. Justice Clarke delivered 8^th September, 2006.

1. Introduction

1.1 In these proceedings the plaintiff ("Wicklow") seeks orders under s. 58 of the Waste Management Act, 1996 (as amended) ("the Acts") against all of the defendants arising from an allegation that the defendants were involved in unlawful actions in relation to the deposition of waste on lands at Whitestown, Co. Wicklow. In this application the eight named defendant ("Dean Waste") and the tenth and eleventh named defendants ("the Directors") (collectively the "Dean Waste Defendants") seek to stay the proceedings as against them, pending the completion of criminal proceedings to which I will refer in due course.

1.2 In the context of this application it is important to note that the Directors were, it would appear, at all material times, directors of Dean Waste. The claim as against the directors is on the basis of a contention that they, as such directors, have a "fallback" liability on the basis of the "polluter pays" principle and having regard to the decision of O'Sullivan J. in Wicklow Co. Co. -v- Fenton (No. 2) [2002] 4 I.R. 44.

1.3 The tenth named defendant ("Mr. Dean") is the subject of criminal charges under the Acts arising out of the same set of circumstances that give rise to these proceedings. In those circumstances it is contended that it is inappropriate for these proceedings to be heard, or indeed to progress further, until such time as the criminal process has completed. In that context it is necessary to refer, firstly, to that criminal process.

2. The criminal process.

2.1 Criminal proceedings on indictment, entitled "the people at the suit of the Director of Public Prosecutions -v- Anthony Dean, Lawrence Creighton, Pat Fitzharris and John O'Reilly", have been commenced and are currently pending in the Dublin Circuit Criminal Court under Bill No. DU 006/112/05. Those criminal proceedings, insofar as they relate to Anthony Dean, are currently stayed by order of this Court pending the hearing of a judicial review application. The Anthony Dean referred to in the indictment is the tenth named defendant in these proceedings. So far as Mr. Dean is concerned the indictment alleges two counts as follows:-

"1. You Anthony Dean on a date or dates unknown between 1^st day of January, 1998 and 1^st day of May, 1998, at Whitestown, Baltinglass, Wicklow in the District Court Area of Baltinglass, did dispose of waste in a manner that was likely to cause environmental pollution contrary to s. 32 of the Waste Management Act, 1996.

2. You Anthony Dean on a date or dates unknown between 1^st day of January, 1998 and 1^st day of May, 1998, at Whitestown, Baltinglass, Wicklow, in the District Court area of Baltinglass, did dispose of waste without having been so authorised by waste licence issued under part V of the Waste Management Act, 1996, in relation to the disposal of such waste at the said lands contrary to s. 39 of the Waste Management Act, 1996."

2.2 It is clear, therefore, that the charges contain an allegation that Mr. Dean was guilty of the disposal of waste between January and May, 1998 at Whitestone in circumstances where such disposal was unlawful by virtue of the fact that it was conducted in a manner that was likely to cause environmental pollution and/or occurred without the necessary licence required under the provisions of part V of the Act. The factual context of the allegations contained in the charge is, therefore, confined to events in the earlier part of 1998 at Whitestown.

In the context of those criminal proceedings it is necessary to turn to the factual basis for these civil proceedings and in particular that aspect of these proceedings that relates to the Dean Waste Defendants.

3. These proceedings

3.1 In the substantive proceedings Wicklow seeks orders pursuant to s. 58 (1)(a) of the Act, as amended, against all of the defendants in connection with what is alleged to be the unlawful holding, recovery or disposal of waste on what would appear to be the same lands at Whitestown, Co. Wicklow. Section 58 enables the court, where it is satisfied that a person is holding, recovering or disposing of (or has done any of the above) waste in a manner that is causing or has caused environmental pollution (or in certain other connected circumstances) to make an order requiring the person to discontinue that unlawful activity and to mitigate or remedy any effects of same.

3.2 It is therefore clear that there is significant overlap between the circumstances giving rise to the alleged criminal conduct on the part of Mr. Dean and the circumstances giving rise to the contention made by Wicklow in these proceedings that all of the defendants and in particular Dean Waste and the directors are liable to the restraining and remedial orders specified in s. 58. It is in that context that Dean Waste and the directors seek to have these proceedings stayed pending the resolution of the criminal process.

4. The statutory purpose

4.1 Before going on to consider the authorities in relation to the appropriate course of action which should be taken by a court when confronted with broadly parallel criminal and civil proceedings, it is necessary to address the purpose of the Acts.

4.2 In Laois Co. Co. v. Scully (Unreported, High Court, Peart J., January 18^th 2006,) Peart J. noted the following:-

"The Waste Management Acts were enacted in order to give effect to a number of EU instruments, but in particular Council Directive 75/442/EEC, as amended by Council Directive 91/156/EEC ("the Waste Directive"). The Waste Directive has as a stated objective the protection of the environment and human health, and the achievement of a high level of protection…that environmental damage should as a priority be rectified at source, and that the polluter should pay. The Oireachtas has given effect to the objectives of the Directive by the provisions of the Waste Management legislation in force and to which the Court has been referred."

4.3 To like effect in Wicklow Co. Co. v. Fenton (No. 2) [2002] 4 I.R. 44 O'Sullivan J. stated the following:

"The purpose of the Act of 1996 and of the underlying directives is, inter alia, to control and prevent environment pollution due to the production, handling recovery and disposal of waste including hazardous waste. When environmental pollution occurs or is likely to occur a person who causes it can be made the subject of an order. In interpreting the Act of 1996 I must apply the teleological principle with the result that the Act must be interpreted in a way which achieves those objectives rather than otherwise. If a principle of purely domestic law, such as the protection afforded by limited viability in the case of corporations, were to operate in a given case so as to run counter to and to frustrate the attainment of those objectives then, in the absence of any other appropriate remedy in my opinion such a principle must yield to the superior imperatives of those objectives."

4.4 I also expressed a similar view as to the purpose of the directives in Cork Co. Co. v. O'Regan (Unreported, High Court, Clarke J.) June 17^th, 2005) where I expressly followed Wicklow Co. Co. -v- Fenton.

4.5 It is clear that the Waste Management Acts, 1996 to 2003 create both criminal offences as well as providing for civil remedies. It is also clear from the provision of s. 58(6) that an application for civil orders (such as those sought in these proceedings) is independent of a criminal prosecution for the activities which are claimed to give rise to the liability under s. 58. Section 58(6) provides that:-

"An application under subsection (1) may be made whether or not there has been a prosecution for an offence under this Act in relation to the activity concerned and shall not prejudice the initiation of a prosecution for an offence under this Act in relation to the activity concerned."

4.6 It seems clear, therefore, that the Oireachtas envisaged that it was at least possible that there would be both criminal and civil proceedings relating to the same activity. The reason for this is obvious. Directive 75/442/EEC as amended ("the Waste Directive") places a significant onus upon the State to secure the protection of the environment from waste. One obvious means of securing an appropriate level of protection of the environment is to ensure that there is a readily available civil remedy which entitles the courts, in an appropriate case, to make an order restraining unlawful activity which would have the effect of damaging the environment by waste and which also enables the court to make further orders requiring appropriate persons to remedy damage already caused by such unlawful activity on foot of the "polluter pays" principle.

4.7 It is clear, however, that the Oireachtas did not consider that those remedies (important as they are) might be sufficient in all cases. In addition it is clear that, by way of deterrent, the Oireachtas has determined that there may be appropriate cases where, in addition to the civil remedies referred to above, it may be necessary to expose those who act in breach of the criminal provisions of the legislation to the risk of substantial penalties in addition to the obligation which might be placed upon them to remedy the wrong already carried out. It might, for example, be the case that the profits earned by wrongful activity might, in certain cases, exceed the cost of remedying the consequences of that wrongful activity. If that were to be the case the civil remedies provided would not act as a sufficient deterrent to those who might be minded to break the law for profit. It is clear that considerations such as those led the Oireachtas to the view that it may be necessary, in appropriate cases, to provide for an exposure to significant criminal penalties in addition to the civil remedies to which I have referred.

4.8 It is therefore clear that the Acts are the means used by Ireland to comply with the important obligations imposed upon member states under the Waste Directive to which Peart J. referred in Laois Co. Co. -v- Scully. The importance of complying with those obligations is a matter that must, necessarily, be taken into account in assessing the manner in which the court must approach the undoubtedly difficult questions which may arise in the circumstances where both civil and criminal proceedings are commenced arising out of the same "activities". Before turning to the jurisprudence in respect of the interaction of criminal and civil proceedings arising out of the same circumstances, it is also necessary to address the interaction of these proceedings insofar as they relate to the Dean Waste Defendants with the remainder of these proceedings as against all of the defendants.

5. The connections between the claim as against all of the defendants

5.1 These proceedings have reached a stage where Wicklow has placed before the court substantial evidence in favour of its contention that each of the defendants was guilty of a breach or breaches of the Acts. As is clear from the brief summary of the proceedings referred to above, the activities of each of the defendants which give rise to Wicklow's claim concern the lands at Whitestown. However it is also clear that, on the state of the evidence as it currently exists, the case as against each of the defendants is not necessarily the same.

5.2 In the course of its investigations it would appear that those acting on behalf of Wicklow divided the relevant site into a number of sub-areas and conducted a detailed investigation of the waste which was found at those areas. It is clear that the allegations against each defendant do not necessarily extend to the entirety of that area, in that materials which, it is alleged, can be traced to each specific defendant or group of defendants were not necessarily found in each of the areas. In particular materials which, it is contended, can be traced to Dean Waste were found in only part of the lands under investigation.

5.3 Similarly, on the current state of the evidence, it would appear that the court may be invited to draw an inference from the evidence as to the time at which the various waste was deposited. It may be the case that the appropriate inference to be drawn as against Dean Waste may relate to some only of the time period during which the overall deposition of waste appears to have occurred.

5.4 In those circumstances it is certainly possible that the case as against Dean Waste (and, therefore, necessarily as against the directors) in these proceedings may relate to some only of the lands the subject of the proceedings as a whole and to a portion of the total time scale during which waste may be found to have been deposited.

5.5 In that context it is argued on behalf of the Dean Waste defendants that there would be nothing to prevent those aspects of these proceedings which do not involve the Dean Waste defendants from proceeding even if the stay sought in this application is granted. I do not believe that that is necessarily the case. The primary relief which is sought is for appropriate orders which would lead to a remediation of the unlawful deposition of waste. Under the "polluter pays" principle identified in the Waste Directive the primary obligation to remediate lies upon person who may be found to be guilty of breaches of the Acts. Where a number of such breaches collectively lead to significant pollution, then amongst the tasks which the court will be faced in determining an appropriate remedy may well be to attribute blame or responsibility as and between each of the defendants for the state of affairs requiring remediation, so as to enable the court to justly apportion the obligation to remediate between those defendants. It is, in my view, by no means clear on the evidence at this stage that the breaches alleged against the Dean Waste defendants, which will, if they be established, require remediation by those defendants, are necessarily discreet from the breaches alleged against the other defendants so as to enable the case as against those defendants to run to a conclusion without also considering the position of the Dean Waste defendants.

5.6 It is not, for example, clear at this stage that it would be either practical or sensible to remediate the site at Whitestown on a piecemeal basis. It may well be that the most economical and effective means of remediating the entire site would be to do so as a single exercise and in those circumstances the court may well be faced with the task of apportioning the obligation to so remediate between those defendants against whom wrongdoing has been established. If that turns out to be the case it would be impossible to reach a final conclusion until the obligations (if any) and the extent of such obligation, as against each of the defendants had been established.

5.7 The primary purpose of s. 58 is to ensure that environmental pollution ceases and that any pollution which has taken place will be remediated by those responsible for it. Establishing the liability (if any) of other defendants without moving on to making whatever orders might be considered appropriate for remediation would be to fail to implement the clear requirements of the Act. There is, in my view, a significant risk that the court would be unable to make final orders in respect of the remediation of the site without having reached conclusions in relation to each of the defendants.

5.8 While it is possible, therefore, that Wicklow might be able to persuade the court to make orders against such of the other defendants as might be established to be guilty of wrongdoing without reaching conclusions in the case against the Dean Waste defendants, it is by no means clear that that would be the case. It is equally possible that some or all of those defendants may be able to assert that the appropriate orders to be made as against them (in the event that wrongdoing is established against them or admitted) should not be finalised without also considering the extent to which Dean Waste might also be responsible so that Dean Waste might be required to share in the burden of remediation.

5.9 In coming to that view I have taken into account the fact that it would appear that at least some of the other defendants have indicated that they accept responsibility for wrongdoing in the context of the criminal proceedings. That fact may well make it easier for Wicklow to establish liability as against those defendants in these proceedings. It will not, however, necessarily make Wicklow's task in establishing what the appropriate remedy should be necessarily any easier in the absence of the court being able to assess the liability (if any) and the extent of the responsibility of the Dean Waste defendants.

5.10 It seems to me that I must, therefore, assess the specific issues which I have to address on the basis that there is at least a realistic possibility that if the proceedings as against the Dean Waste defendants are stayed same may have the affect of making it difficult, or indeed impossible, for the court to impose an appropriate form of remedial order so as to secure that the lands become free from environmental pollution until after the stay has expired. In that context it should also be noted that the precise length of the stay which is being sought in this application is indeterminate. It is not clear when the judicial review proceedings which are currently holding up the criminal trial as against Mr. Dean will be disposed of. In that context it could be quite a considerable time before the criminal trial as against Mr. Dean is finalised. It, therefore, follows that the staying of these proceedings as against the Dean Waste defendants has at least the possibility (for the reasons which I have analysed in some detail above) of preventing any appropriate remedial orders being made in respect of the Whitestown site (or at least significant portions thereof) for a quite significant period of time. It is in that context that it is necessary to turn to the jurisprudence.

The caselaw

6.1 In Dillon v. Dunnes Stores [1966] I.R. 397 the Supreme Court refused to stay civil proceedings for false imprisonment in circumstances where the plaintiff was also facing a criminal charge of larceny of the defendant's property arising out of the same incident. In the course of delivering judgment in that case O'Dálaigh C.J. stated:

"In substance the plaintiff's claim is now a claim for false imprisonment. Now or later this claim must be tried in the High Court. The result of the action, if tried now, cannot affect the determination of the issues the jury has to try in the criminal matter. This Court cannot take into account the effect of newspaper publicity. If newspaper publicity relating to a civil action may adversely affect a criminal prosecution, equally newspaper publicity relating to a criminal proceedings may adversely affect a subsequent action. But the true position is that newspaper reporting is a part of the democratic way of life; and juries when they come to try a case, civil or criminal, must put out of mind what they have read in newspapers and try the case on the evidence. If there be a tactical advantage in getting one case ahead of the other, this is not a matter in which the Court should assist one party rather than another; rather should it let the cases find their date of trial as they become ripe for hearing. This is the position of the plaintiff's action; and no authority has been referred to which would warrant the Court in seeking to postpone it until after the final determination of the criminal proceedings. As the plaintiff could not have had an order to postpone the criminal proceedings until the determination of her civil action, equally the hearing of the civil action cannot be required to await the conclusion of the criminal proceedings. No considerations of public policy are in question." (at pages 402-403).

The matter was again considered in O'Flynn v. Mid Western Health Board [1991] 2 I.R. 223 at 236 where Hedermen J. stated the following:-

"It remains to deal with the delay alleged on the Board's part. That complaint relates essentially to the length of time that the matter was with the prosecuting authorities. It is often thought in lay circles that a criminal investigation must take priority over civil proceedings and that civil proceedings must remain at a standstill while a matter is the subject of criminal investigation. That view may be correct and it may be an appropriate course to take in certain cases but it is not immutable. The decision of this Court in Dillon v. Dunnes Stores Ltd. [1966] I.R. 397 makes this clear."

The Court of Appeal in England considered the same issues in Jefferson Limited v. Bhetcha [1979] 2 All E.R. 118. Megaw L.J. outlined the principles to be applied on such an application at p. 1113 as follows:

"I should be prepared to accept that the court which is competent to control the proceedings in the civil action…would have a discretion…to stay the proceedings if it appeared to the court that justice (the balancing of justice between the parties) so required, having regard to the concurrent criminal proceedings, and taking into account the principle, which applies in the criminal proceedings itself, of what is sometimes referred to as the "right of silence" and the reason why that right, under the law as it stands, is a right of a defendant in criminal proceedings. But in the civil court it would be a matter of discretion, and not of right. There is, I say again, in my judgment, no principle of law that a plaintiff in a civil action is to be debarred from pursuing that action in accordance with the normal rules for the conduct of civil actions merely because so to do would, or might, result in the defendant, if he wished to defend the action, having to disclose, by an affidavit under Order 14 or in the pleading of his defence, or by way of discovery or otherwise, what his defence is or may be in whole or in part, with the result that he might be giving an indication of what his defence was likely to be in the contemporaneous criminal proceedings. The protection which is at present given to one facing a criminal charge (the so-called) right of silence does not extend to give the defendant as a matter of right the same protection in contemporaneous civil proceedings."

6.2 The court then went on to indicate that each case must be judged on its own facts and that the burden rested upon the defendant in the civil action to show that it is "just and convenient" that the plaintiffs ordinary rights of having his claim processed heard and decided should be interfered with.

6.3 There is no doubt, as was pointed out, by Magaw L.J. that an important factor to be taken into account is the extent to which there may be a real danger of causing an injustice in the criminal proceedings.

6.4 A similar approach was taken by Finlay Geoghegan J. in C.G. v. Appeal Commissioners [2005] 2 IR 472. That case concerned an application to stay an appeal in relation to income tax assessments pending the determination of criminal proceedings against the applicant for failure to make tax returns.

6.5 Finlay Geoghegan J. accepted that there was no absolute obligation to adjourn the civil proceedings and indicated that each application must be determined on its own facts. She accepted that the onus was on the applicant to establish that there was a real risk of prejudice or injustice if the civil proceedings were to go ahead. Applying those principles to the facts of the case before her she determined, at p. 482 as follows:-

"On the particular facts of this appeal I do not consider that the applicant has established that there is a real risk of prejudice or injustice if he were now to be required to proceed with his tax appeal, which warrants this court granting an injunction even in respect of the appeals relating to the same years assessment as the pending criminal charges. There is no evidence at present which suggests that the applicant will require to give evidence of a self incriminating nature at the hearing of the tax appeal. If there are different relevant facts then it is a matter to be considered and decided by the respondent, bearing in mind that it will be a matter for the Trial Judge at the criminal trial to ensure by appropriate rulings that there is no breach of the applicant's rights under Article 38.1 of the Constitution in accordance with the above principles."

6.6 It should be noted that a significant factor which led to the conclusion in that case was the acceptance by all parties that any evidence to be given on the tax appeal by the taxpayer concerned was not such as would lead to any further line of inquiry in relation to evidence or witnesses concerning the criminal charges.

6.7 It would, therefore, appear that there is no hard and fast rule as to how contemporaneous and civil and criminal proceedings arising out of the same matter should be progressed. It is clear that the onus rests upon the party seeking a stay of the civil proceedings to establish the grounds necessary to enable the court so to do. In coming to any such assessment the court must, on the one hand, give due recognition to the importance of allowing the plaintiff or other moving party in the civil proceedings to achieve a timely resolution of those proceedings and obtain the benefit of any orders which might be appropriate. On the other hand the court has to balance, as against that, the extent to which there may be a real risk that prejudice might be caused to the criminal proceedings. I am satisfied that in giving consideration to this latter matter the court must attempt to analyse the likelihood of there being any such prejudice and have regard to the extent to which it may be possible by measures to be adopted in the criminal process to minimise or ameliorate any such prejudice as might arise.

6.8 For the reasons which I have analysed in some detail above I am satisfied that a high weight needs to be attached to the importance of permitting allowing a plaintiff charged with the enforcement of a civil regime for remedying environmental pollution to be able to obtain, in a timely fashion, whatever orders might be justified on the facts of an individual case. What needs to be weighed against those considerations are the contentions on the part of the Dean Waste defendants as to the prejudice which might arise in respect of the criminal proceedings in the event that these civil proceedings are allowed to progress. I now turn to that alleged prejudice.

7 The alleged prejudice

7.1 In substance the Dean Waste defendants put forward two grounds for suggesting that significant prejudice will occur in the event that an order staying the civil proceedings is not made. Firstly, it is suggested that the conduct of the civil proceedings will, in fact, necessarily amount to a denial of Mr. Dean's right to silence.

Secondly, it is suggested that there is a risk that the publicity which would be likely to result from the conduct of the civil proceedings would have the potential to prejudice a fair trial. I deal with each in turn.

7.2 It is the case that no affidavit evidence has, as yet, been filed by the Dean Waste defendants in these proceedings. It is not, therefore, clear as to what their defence to those proceedings may be. They may, of course, seek to argue that the evidence put forward by Wicklow is insufficient to establish, on the balance of probabilities, that they have been guilty of any breach of the Act. That could, of course, be done without filing any evidence. However, it is undoubtedly the case that a defendant in civil proceedings will, necessarily, in many cases, be impaired in the conduct of their defence if they do not go into evidence.

7.3 It should, however, be emphasised that there is a difference between the sort of situation which arose In Re National Irish Bank [1999] 3 IR 145 and that which arises in these proceedings. In National Irish Bank the court was concerned with a situation where persons were required, under criminal penalty, to answer questions posed by inspectors appointed under the provisions of the Companies Act, 1990. The judgment of the Supreme Court was delivered by Barrington J. who first noted (following Heaney v. Ireland [1996] 1 I.R 580), that the general right to silence derives from the right to freedom of expression guaranteed to citizens by Article 40.6 of the Constitution and was, therefore, a constitutionally recognised entitlement. However, it was noted that the right to silence was not absolute but might, in certain circumstances, have to give way to the exigencies of the common good provided that the means used to curtail the right of silence were proportionate to the public object to be achieved (see p. 179).
7.4 In the circumstances of an investigation into alleged serious wrongdoing, being conducted by inspectors appointed under the provisions of the 1990 Act, the court was satisfied that the entitlement of the inspectors to require, under criminal penalty, persons to answer appropriate questions was such a proportionate interference.
7.5 The circumstances that arise in a case such as this are, of course, different. There is no absolute requirement under pain of criminal penalty upon any of the defendants in proceedings such as these to answer any questions. It is undoubtedly the case that the defendants may be at a significant disadvantage if they do not put forward, in the course of the process, such evidence as they may think appropriate, for the purposes of defending the proceedings. However, it needs to be emphasised that the "compulsion" under which the defendants may be said to lie in circumstances such as arise in this case (i.e being placed at a disadvantage in the defence of civil proceedings) must be regarded as less onerous than that which would pertain in circumstances such as arose in National Irish Bank where the persons concerned would have been liable to a criminal conviction and penalty for failing to give an account to the inspectors on matters which might expose them to a separate criminal liability in relation to the underlying events.

7.6 It was pointed out by Barrington J. at p. 188 in National Irish Bank that what might be objectionable under Article 38 of the Constitution "is compelling a person to confess and then convicting him on the basis of his compelled confession." The judgment went on to note that:-

"The courts have always accepted that evidence obtained on foot of a legal search warrant is admissible. So also is objective evidence obtained by legal compulsion under, for example, the drink driving laws. These answers are in no way tainted and further information which the inspectors may discover as a result of these answers is not tainted either. The case of The People (Attorney General) v. O'Brien [1965] I.R 142 which deals with evidence obtained in breach of the accused's constitutional rights has no bearing on the present case. In the final analysis however, it will be for the trial judge to decided, whether, in all the circumstances of the case, it would be just or fair to admit any particular piece of evidence, including any evidence obtained as a result or in consequence of the compelled confession."

7.7 It should be noted that it is unlikely that the stark circumstances identified by Barrington J. in National Irish Bank could arise, in any event, in a case such as this. If a person required to answer questions by an inspector appointed under the provisions of the Companies Acts has, in fact, being guilty of a criminal breach of the companies legislation then that person may, of course, if they are to give truthful answers to the questions concerned, be obliged to admit such breach. They will then have to "confess" to the wrongdoing concerned. A person who is a defendant in civil proceedings does not, of course, have to "confess" per se. If the material which would be included in a replying affidavit might be said to amount to "confession" then it is difficult to see how any prejudice would be caused to the person concerned by not including that material in the affidavit at all. It might, of course, expose that party to whatever finding might be appropriate in the absence of that party having given any evidence. However, that would only arise in the event that the applicant or plaintiff was in a position to prove the case on a prima facie basis in the first place.

7.8 I am, of course, mindful of the fact that there may be a variety of intermediate positions which a defendant in civil proceedings may wish to put forward. It may wish to contest some, but not all, of the allegations which would give rise to a finding of liability against it. It may wish to put forward materials which might have an effect on the order which the court might be persuaded to make. Such matters might provide a partial defence or might ameliorate the extent of the remedy that might be imposed. To do so may require an express (or at least an implicit) acceptance of the validity of at least part of the applicant's case.

7.9 There can be no doubt that there is the potential for the Dean Waste defendants being placed at a disadvantage in the civil proceedings if they do not go into evidence. However, that disadvantage might be said to be less onerous than the obligation placed upon those required to answer the questions of the inspectors in National Irish Bank who are faced with a criminal penalty should they refuse.

7.10 I am satisfied, therefore, that the purposes behind the conferring of a statutory jurisdiction on local authorities to seek the forms of enforcement orders allowed by s. 58 of the Act, are an important part of the enforcement of environmental protection and thus have a significant weight in the public interest under the Constitution. This weight is increased by reference to the State's obligations to secure compliance with the Waste Directive. In all those circumstances it seems to me that the limited form of interference with the right to silence by indirect means which applies in circumstances where a party may, as a matter of practice, thought not as a matter of legal obligation, be required to file an affidavit in defence to an application for an order under s. 58 amounts, in general terms, to a proportionate interference with the right to silence for the purposes of securing the objectives of the Act, even where a criminal prosecution is in being.

7.11 To take any different view would mean that the price which the public interest would have to pay for the invocation of the criminal jurisdiction under the Acts would be a significant deferral of what might otherwise be the entitlement of the public (through the relevant statutory agencies), to have appropriate remedial works carried out in a timely fashion. A defendant who would, were he to file such an affidavit, be said to be making a "confession" is most unlikely to be at any disadvantage by not filing the affidavit in the first place. A defendant whose affidavit would be totally exculpatory will not, equally, be at any disadvantage in relation to the criminal process. While accepting that there may be intermediate cases where the proper conduct of the defence would, in the ordinary way, require the filing of an affidavit which may, at least by implication, accept part of the enforcing authorities' case, I am not satisfied that that limited interference with the right to silence would justify the serious consequences of staying the enforcement by means of s. 58 of important public entitlements. In those circumstances I am not satisfied that any potential interference with the right to silence in a case such as this that would arise by virtue of requiring the defendant to put in a replying affidavit while criminal proceedings are pending would justify staying civil proceedings.

7.12 However, whether the same situation, and the same balancing of rights, would necessarily arise at a subsequent stage in the proceedings where either oral evidence was to be tendered or discovery orders made would depend on the facts of the case as of that stage and, in particular, the issues arising which would, by that time, be much clearer.

I do not, therefore, rule out the possibility that at a subsequent stage in these proceedings it may be necessary to revisit this question in the light of more precise issues of disclosure (whether by way of discovery or, for example, oral evidence and cross-examination) that may have arisen at that stage.

7.13 At this stage I am, however, satisfied that the importance of the statutory remedies being pursued in these proceedings justify requiring the Dean Waste defendants to file a replying affidavit if they wish to contest any of the evidential basis for Wicklow's case. I am satisfied that in so requiring, any effect on the right to silence would be limited and that the balance of justice does not favour staying the proceedings so as to remove a current obligation from the Dean Waste defendants to file such an affidavit if they wish to contest the facts.

7.14 I now turn to the contention that prejudice may arise by virtue of adverse publicity. I am again not satisfied that requiring the filing of a replying affidavit at this stage would give rise to any significant adverse publicity such as might imperil the likelihood of a fair trial not least because the likely date of any such trial seems well in the future. Whether the adverse publicity that might attend a full hearing of the case and, indeed, any decision which the court might make adverse to the interests of the Dean Waste defendants after such full hearing, can be more carefully assessed in the light of the precise issues which the court may have to decide at such a full hearing. Until such time as the Dean Waste defendants have specified their defence, it is not clear as to the real issues which would arise at such hearing. In those circumstances I am also satisfied that it is not possible, at this stage, to form the view that any possible prejudice by reason of adverse publicity would be sufficient to warrant a stay of these proceedings. As I indicated in relation to those grounds of prejudice which stem from the right to silence that situation might, however, change at a later stage in the light of the issues which would require to be addressed by the court.

8. Conclusions

8.1 I am not, therefore, satisfied that it has been established, at this stage, that either of the two grounds of prejudice put forward are sufficient to warrant depriving Wicklow of the opportunity to attempt to persuade the court to invoke the important statutory remedies for the public protection which are set out in s. 58 of the Act. I would not propose granting the stay sought.

8.2 I should, however, make clear that it is open to the Dean Waste defendants to seek, at any subsequent stage, to invite the court to take a different view in the light of the state of these proceedings at that stage, and, in particular, in the light of any disclosure which may be required of the Dean Waste defendants at that time and in the light of the publicity that might reasonably be likely to attach to an airing and resolution of the specific issues which the court may be likely to have to address should the case go to trial.

Approved

Clarke J.