Supreme Court of Ireland Decisions

1. These proceedings are judicial review proceedings initiated by the Applicant/Appellant (hereinafter the Appellant) against the Respondents pursuant to an order of Geoghegan J. of the 29th day of June, 1998 granting leave to the Appellant to apply for such judicial review.

2. The proceedings have given rise to two appeals before this Court, the first from an order of the High Court of Geoghegan J. of March 2nd 1999 refusing the Appellant’s application for discovery of certain documents by the first-named Respondent and the second from an order of the High Court of McCracken J. of 23rd April, 1999 refusing an application on behalf of the Appellant to amend the Statement of Grounds on which the application for judicial review is based.

3. I will first of all deal with the Appellant’s appeal against the Order of the High Court refusing its application for discovery. By way of notice of motion dated 15th December, 1998 the Appellant sought discovery of certain documents as against the first-named Respondent only (N.S.A.I.) and they are the only Respondent concerned with this particular appeal. The Appellant appeals from the Order of Geoghegan J. who by Order dated the 2nd day of March, 1999 refused to order the discovery of the documents sought against the first-named Respondent.

4. Before detailing the documents sought in discovery it is necessary to set out some of the background facts and the issues in dispute between the parties.

5. The Appellant company is an importer of thermoplastic piping known as Euroflex. It has been importing this product into Ireland since June, 1995. Euroflex piping is, what has been referred to in the proceedings as, a “non-cross-linked” thermoplastic pipe. It is a building material intended for use for carrying hot and cold water for under floor heating and for high temperature radiator heating. What might be described as a more traditional form of

6. Piping made from plastic materials would generally be unsuitable for use in situations of high temperature or high pressure. Hence the need for enhancement or strengthening of such piping in order to ensure that it meets certain standards of performance or “service requirements” concerning its durability when used for such purposes. Cross-linking is one method of enhancing plastic piping. It is not in contention that the plastic piping which is on the Irish market and which has to-date been certified by the first-named Respondents as complying with the appropriate service requirement standard has in every case been enhanced by the cross-link process. The Appellants, whose piping is non-cross-linked but enhanced by a different process, as indicated above, decided to apply for certification of their product as this was deemed necessary for full access to the Irish market. Neither is it in contention that the Appellant’s product was the first non-cross-linked thermoplastic piping for which certification was sought from the relevant Irish authorities.

7. Accordingly, in or about March/April, 1996 the Appellants decided to apply for a certificate of agreement from the Irish Agreement Board (hereafter I.A.B.)

8. The I.A.B. is a consultative committee which functions under the aegis of the first-named Respondents, the N.S.A.I. The N.S.A.I. was established as an independent statutory body in 1996 pursuant to the National Standards Authority of Ireland Act, 1996. Its functions are set out in s. 7 of the 1996 Act. One of its functions is

9. The N.S.A.I., by virtue of the 1996 Act took over the functions previously carried out by the Institute for Industrial Research and Standards which had originally established the I.A.B. The I.A.B. issues Agreement Certificates for building and civil engineering products. Agreement certification is a favourable technical assessment of the fitness of such products for building and civil engineering purposes. The certificate is intended to provide an independent opinion on the performance in use of, inter alia, a building product and will clarify compliance with the technical requirements of any applicable controlling regulations. The agreement certificate has particular importance of the purposes of the Building Regulations, 1991, (S.I. No. 206 of 1991), the first schedule of which provides, inter alia, that products which have an I.A.B. certificate are acceptable for use in building.

10. The presentation of an application for an Agreement Certificate by the Appellant was followed by a fairly extended process in the course of which the Appellant furnished reports and a range of technical material supporting its case that it should be granted such a certificate. What the I.A.B. sought was compliance by the Appellant’s product with certain performance criteria. Eventually in March, 1997 a draft certificate was furnished by I.A.B. to the Appellants but this draft certificate was issued subject to N.S.A.I. standard conditions which makes a final certificate conditional on no new information becoming available which

11. The Appellant’s cause of action against the first-named Respondents is based on their failure, through the aegis of its sub-committee the I.A.B., to issue the Certificate of agreement and their financial loss following from that failure.

12. I think it is important to note at this stage that there are essentially three grounds upon which the Appellants sought and obtained judicial review against the first-named Respondents. These are:-

13. Furthermore, the relief sought in the judicial review include what I might call a sort of rolled-up plea against all respondents for damages for breach of Article 6 (now Article 12) as well as Article 30, and Article 5 of the E.C. Treaty. Article 6 prohibits discrimination on the grounds of nationality. Although it is well established that Article 6 applies independently only to a situation where no other Article of the Treaty specifically applies such as Article 30 in this instance, in any case nationality concerns persons i.e. nationals of Member States, and not the origin of products.

14. In any event as regards the first-named Respondents, Article 6 is not referred to in the grounds upon which relief is sought in the Statement of Grounds nor in the verifying affidavit. Therefore, for the purposes of this application Article 6 must be considered as irrelevant.

15. It is also important to note that there is no allegation or reference in the Statement of Grounds or in the verifying affidavit of discrimination or unequal treatment on the part of the

16. It is in the light of these issues that the Appellant’s application falls to be considered.

17. The documents which the Appellant seeks to discover as set out in the motion for discovery, are as follows:-

18. The first-named Respondents have already made discovery in these proceedings to the Appellants of all documents in its power and possession concerning the actual application of the Appellant for an agreement certificate.

19. As appears from the document sought by the Appellant this application concerns documents in the possession of the first-named Respondents concerning the application for Agreement Certificates from the first-named Respondents by third parties in respect of polyethylene piping.

20. In his grounding Affidavit seeking discovery, Mr. David McCarthy, a director of the Appellant company, averred that the Appellants had sought to prove compliance of their product with the performance criteria set out in the applicable standard by way of two internationally accepted technical formulae, being:-

21. It was submitted on behalf of the Appellants that the foregoing methodology for establishing compliance with performance criteria are internationally accepted as valid. It is submitted on behalf of the Appellants that if the first-named Respondents can be shown to have:

22. The submissions made on behalf of the first-named Respondents in the course of the hearing included the following:

23. The Appellant in its application relied upon the decision of the Court in Sterling Winthrop Group Limited v. Fabenfabriken Baye r [1967] IR 97 where it was held that

24. However, it seems to me that there is nothing in that statement which is intended to qualify the principle that documents sought on discovery must be relevant, directly or indirectly, to the matters in issue between the parties in the proceedings. Furthermore, an applicant for discovery must show it is reasonable for the Court to suppose that the documents contain information which may enable the applicant to advance his own case or to damage the case of his adversary. An applicant is not entitled to discovery based on mere speculation or on the basis of what has been traditionally characterised as a fishing expedition.

25. As regards the present proceedings I would first of all say that the claim of the Appellants based on legitimate expectation is clearly not one on which they can ground an application for the discovery of documents concerning third party applications for certification and I do not think it was seriously contended that it was so. Whether the Applicants are entitled to succeed against the first-named Respondent on this ground depends entirely on the transactions which took place between those parties and their conduct in relation to same. The documents sought are not relevant to this issue.

26. Fundamentally, the Appellant has claimed that discovery of these documents concerning the applications made by third parties for a certification of their particular products is appropriate in order to demonstrate that the first-named Respondent treated the application in a discriminatory fashion as compared to its other Irish competitors. In my view the first-named Respondents were correct in relying on the fact that this is not an issue which forms part of the issues in the proceedings since it did not form part of the Statement of Grounds for which leave to apply for judicial review was granted; nor is it set out in the verifying affidavit. As indicated above the grounds relied upon by the Appellants in the Statement on which the proceedings are based are not, in my view, in any way open to the construction that they were making the case that the first-named Respondent had exercised bias or discrimination in their evaluation of applications for certification for plastic piping by Irish companies other than the Appellant, by reason of the origin of the product or otherwise.

27. It seems to me on this ground the Appellants’ application should fail and that the order of the learned High Court judge should be upheld.

28. As regards the grounds of claim of the Appellant according to which the first-named Respondent was in breach of Article 30 or wrongly failed to accept the technical data and other information provided to it by the Appellants I am also of the view that the documents in question have no relevance to these issues. The fact that their product was in free circulation in other Member States and the assertion that it has been recognised as complying with certain international standards cannot be advanced or affected by documentation relating to other applications to the IAB for certification.

29. I think the same considerations apply to the claim by the Appellants that the first-named Respondents wrongfully refused to accept the technical data and other information supplied by them as demonstrating that their own product complied with the

30. There is one further matter which I wish to deal with. It was suggested, and I am not sure if it can be put further than that, but assuming that it can be, that the documents sought on discovery could help the Appellants to show that the first-named Respondents had or must have, in dealing with the applications for certification by third parties, relied on a methodology the same as that relied upon by the Appellants in their application namely, the extrapolation of data and Miner’s Rule. This suggestion or argument is based upon an earlier affidavit sworn on behalf of the Appellants by Mr. David McCarthy on October 12th 1998. That affidavit goes no further than saying that

31. “it is difficult to see how products such as Qualplex”, (one of the third party applicants) “for which an agreement certificate was issued in November, 1995, can have demonstrated their compliance with pr EN 12318-1 without recourse to extrapolation or Miner’s Rule” (para. 16).

32. Earlier in the same affidavit Mr. McCarthy observes that “presumably” the first-named Respondents had subjected such pipes to the same rigorous assessment as his own product having regard to the fact that the performance criteria are the same for cross-linked and non-cross-linked piping. The suggestion that the first named Respondent had recourse to extrapolation and Miner’s Rule seems to me to be essentially speculative. In my view the uncontroverted evidence of Mr. William Crowe contained in his affidavit of 22nd February, 1999 in response to the affidavit of Mr. McCarthy grounding the application for discovery disposes fully and completely of this point.

33. Mr. Crowe fully acknowledges that both of the Appellants product, a non-cross-linked product, and the cross-linked products of the third parties are required to respond to the same service criteria concerning their durability when exposed to central heating temperatures and pressure conditions as envisaged in pr EN 12318-1 which the parties, despite earlier disagreement, now agree is the appropriate standard.

34. In his Affidavit Mr. Crowe goes on to explain that the methodology of demonstrating that such service criteria are met is a distinct matter. The choice of methodology is a matter for the applicant.

35. It is not in dispute between the parties that “cross-linking” as a method of enhancing plastic pipes for use in central heating systems has been used and known for a good number of years. Mr. Crowe avers that this has led to the formulation of internationally accepted product quality standards against which the characteristics of cross-linked material can be judged. He says that the development of such standards in this way, together with the known behaviour of cross-linked material over a long time in service, is the basis for accepting cross-linked material shown to meet these characteristics. Once it is shown that the cross-linked product in question meets these characteristics it is possible to be satisfied that the material meets the service criteria with which we are concerned in this case. He averred that demonstrating that a cross-linked material has these particular characteristics is known as the “characterisation approach” .

36. The Appellant acknowledges in its Affidavits that cross-linking is an older approach and that its non-cross-linked piping is the result of newer technology whereby the piping is enhanced by modifying the molecular structure of the plastic. Furthermore, Mr. Crowe’s explanation of the basis and use of the “characterisation approach” has not been contradicted. Similarly, it has not been controverted that all the five third party applicants

37. I conclude from the evidence before the Court in the relevant Affidavits that both the Appellants’ non-cross-linked piping and the third party’s cross-linked piping must respond to the same performance criteria that is to say they must be capable of having the same durability in service conditions involving high temperature and high pressure. Both however had been enhanced or strengthened with a view to meeting these service criteria by a different technological process. The former, the cross-linked, for the reasons set out in Mr. Crowe’s affidavit may be evaluated according to a methodology known as the “characterisation approach”. It may possibly be that the Appellants’ non-cross-linked product is not susceptible to being evaluated by what has been called the “characterisation approach”. Whatever be the case, the fact is that the Appellant has sought to establish its product’s compliance with the necessary performance criteria by a totally different methodology, namely, extrapolation and Miner’s Rule. Presumably, there is a scientific methodology for demonstrating a product’s durability and service conditions over a long period of time (such as the fifty years envisaged for this kind of product) without having to engage in trial and error over the entire of such period. But that is not a matter with which we are concerned with in this application.

38. What is important here is that the Applicants’ product, on the basis of its own application, falls to be evaluated according to an entirely different methodology than that used for the five other third party applications. In these circumstances I do not think that the non-cross-linked product and the cross-linked product can be considered similar products for the purposes of this application and certainly given the wholly different methodology in question they cannot be said to belong to the same genre of application.

39. In these circumstances I consider the suggested basis for the granting of discovery in this case as at best speculative, and that it has not been shown that the documents sought are directly or indirectly relevant to the issues between the parties.

40. For these reasons also I am of the view that the documents sought in discovery cannot reasonably be considered necessary or relevant for the disposal of the issues in these proceedings.

41. In my view the learned High Court judge was correct in refusing discovery.

42. I will now turn to the Appellants second appeal in these proceedings which concerns the refusal of McCracken J. by Order of 23rd April, 1999 to accede to the Appellants’ application to amend its Statement of Grounds.

43. The Appellant seeks liberty to amend a statement of grounds with a view to adding the following reliefs:-

44. Consistent with the foregoing proposed amendments the Appellants seek to add the following paragraphs to the grounds upon which relief was sought in the Statement of Grounds:

45. The reliefs sought as against the second-named Respondent and specified in the statement grounding the original application for judicial review seek, inter alia, a declaration that the Appellants’ product is capable of being considered a “proper material” for the purpose of the Building Control Regulations, 1991 and an order of certiorari quashing the decision of the second-named Respondent purporting to refuse to accept the product as a “proper material” for the purpose of the regulations.

46. The Appellants contend that they had not been aware of any particular decision by the Minister, the second-named Respondent, that their product could not be deemed to be a “proper material” for the purposes of the Building Regulations until it emerged from Affidavits filed on his behalf subsequent to the granting of liberty to seek judicial review. These, it is claimed disclose that a specific decision had been made on June 3rd 1998. The Appellant contends that it only became aware of this particular decision as a result of the Affidavits sworn by Mr. Michael McCarthy on August 31st 1998 and December 14th 1998. It is submitted on behalf of the Appellant that the earliest date upon which it could be deemed to have been made aware of the particular decision taken by the second-named Respondent was August 31st 1998 although it also contends that it was not until the further Affidavit of December 6th 1998 that the position became absolutely clear. The Appellant also asks the Court to take into account that the information concerning the Minister’s decision emerged in a piecemeal fashion through the Affidavits sworn in the proceedings.

47. The application for leave to amend was made by motion dated the 15th March, 1999. The Appellant relies on 0. 84, r. 23 (2) of the Superior Court Rules. This provides that the Court may allow an applicant to amend his statement “whether by specifying different or additional grounds of relief ... or otherwise, on such terms, if any, as it thinks fit ...”

48. The Respondents, in opposing the application, submit that the Plaintiff has failed to bring his action promptly, is out of time and has failed to explain or excuse the delay. It is also submitted that the Appellant misconstrues the decision process as a quasi-judicial determination.

49. On perusing the statement grounding the application for judicial review and the Affidavits filed in the proceedings it is clear that the Appellants were aware prior to the application for judicial review that the Minister had taken some decision which resulted in their product not being considered “proper material” for the purposes of the aforesaid Building Regulations. At least initially, they became aware of this through various building inspectors informing persons in the building trade that the product was not a “proper material” for the purposes of the regulations. There was subsequently a good deal of toing and froing between the Appellants and the Department of the Environment and I think it is also fair to say that it is only in the affidavits filed subsequent to the application for judicial review that it emerged that a specific or positive decision may have been made on a particular day by the Minister to the effect that the Appellants’ product should not be considered as a “proper material” . I say that such a decision on such a date “may” have been made since it at all times remains for the Appellants to establish this fact in the substantive proceedings. Whether the Minister was simply at no point satisfied that the product in question was not shown to be a “proper material” or whether at some specific point he took a positive decision to deem it not to be a “proper material” is something which will have to be addressed at the trial of the issues. Suffice to say for present purposes that the process by which the second-named Respondent came to consider that the product was not a “proper material” is not entirely clear. Neither was it entirely clear to the Appellant but it claims to have sufficient basis in the Affidavits filed on behalf of the second-named Respondent from

50. In short from the Appellants’ perspective the circumstances as to when and precisely how their product was deemed not to be a “proper material” was somewhat opaque. This is not a criticism of the second-named Respondent who has to apply the regulations in question on a day to day basis on a much broader front than simply one particular product. It is however a factor to be taken into account in the context of the Appellants’ particular application in this instance.

51. I think it is also relevant to take into account that the proposed amendments do not extend the ambit of the proceedings in a significant manner. It is not seeking to include a new cause of action, although I would not consider this alone a determining factor. The judicial review proceedings already include a claim for certiorari of a decision of the Minister. The proposed amendments seek to include, if not ancillary, complementary grounds for attacking that decision, albeit more specifically. The Appellant has, in my view, established that it should be allowed at least to make the case grounded upon the proposed amendments.

52. As regards delay, if the Appellant knew or ought to have known of the alleged particular decision of the Minister of June 3rd 1998 on service of the Affidavit of Mr. Michael McCarthy sworn on August 31st 1998 they are out of time for the making of their application by a short period. Nonetheless, having regard to all the circumstances of the case as outlined above I am of the view that the delay is excusable and that the application for leave to amend the Statement of Grounds should be granted.

53. For these reasons I would allow this particular appeal.