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You are here: BAILII >> Databases >> Supreme Court of Ireland Decisions >> Short & ors -v- Ireland & ors [2006] IESC 46 (11 July 2006)
URL: http://www.bailii.org/ie/cases/IESC/2006/S46.html
Cite as: [2007] 1 ILRM 161, [2006] 3 IR 297, [2006] IESC 46
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Judgment
Title: Short & ors -v-
Ireland & ors Composition of Court: Murray C.J., Fennelly J., Macken J. Judgment by: Fennelly J. Status of Judgment: Approved
Outcome: Dismiss | ||||||||||||||
31 THE SUPREME
COURT No
341/2004Murray C.J. Fennelly J. Macken J. BETWEEN CONSTANCE SHORT, MARY KAVANAGH, MARK DEAREY and OLANN HERR Plaintiffs and IRELAND, THE ATTORNEY GENERAL AND BRITISH NUCLEAR FUELS Plc. JUDGMENT of MR JUSTICE FENNELLY delivered on the 11th day of July, 2006. This is an appeal from a judgment of Peart J in the High Court. He determined a number of points of law in this action, which was commenced in 1994. They concern the operations of the third-named defendant (hereinafter “BNFL”) at Sellafield, Cumbria in the United Kingdom. The plaintiffs are Irish citizens, who reside in County Louth. They complain that BNFL, by operating a Thermal Oxide Reprocessing Plant (“THORP) at Sellafield, has caused discharges into the Irish Sea, resulting in pollution of the environment and damage or potential damage to the health of the plaintiffs. The principal point of the appeal is whether the courts of Ireland have jurisdiction to determine the lawfulness or validity of certain decisions authorising or permitting the operations of which the plaintiffs complain. The plaintiffs claim that this issue has already been decided by this Court in 1996 and is res judicata. I am happy to adopt the following account from the judgment of Peart J of the factual background to the claims:
The plaintiffs claim that these discharges have already and will continue to cause considerable personal health and environmental damage and economic loss in the area where they live, and that they as well as other Irish people are among those who can expect to die as a result of the THORP operation. They also say that the commissioning and operation of the THORP plant constitutes in itself a source of mental and psychiatric injury to the plaintiffs and to their families, especially having regard to the absence of the environmental impact assessment required by Directive 85/337, and/or the justification required by Directive 80/836, and having regard to the conduct of BNFL in relation to the site at Sellafield.” I propose now to outline the history of the litigation. The litigation to date The Plenary Summons was issued on 21st March 1994. It claims against all defendants “declarations and Injunctions and damages for nuisance, trespass, wrongful acts, unlawful interference with their Constitutional Right of bodily integrity and for breach of European Union Law.” The reliefs claimed against the first two defendants, whom I will describe as the state defendants, are not relevant to the present appeal. The thrust of the allegations against the state defendants is that they failed to protect the plaintiffs’ constitutional right to bodily integrity. In particular, it is alleged that they failed to conduct litigation in the courts of the United Kingdom or internationally to resist the grant of legal authorisations to BNFL. It is also complained that the state defendants failed to make arrangements for effective access to BNFL’s operations so as to be in a position to monitor compliance with the authorisations and that the state defendants should have published an environmental assessment of those operations. As against BNFL, the Plenary Summons claimed:
B. Council Directive 80/836 Euratom: failure to provide justification which demonstrates that the exposure to radiation to the Plaintiffs and others who live near the Coast of County Louth is justified by the benefit to their society. ii. An Injunction restraining the said defendant from carrying on its reprocessing activities until it has fully complied with the said Directives. iii. Damages and/or Compensation." By order dated 22nd March 1994, Carney J granted liberty to serve the Plenary Summons on BNFL outside the jurisdiction. That order recited that it appeared that the action fell “within the class of action set out in Order 11 Rule 1 of the Rules of the Superior Courts.” It did not further specify the particular class of action. BNFL entered a conditional appearance for the limited purpose of contesting the jurisdiction of the court. It then issued a notice of motion to set aside service of the Plenary Summons upon it. That motion was dismissed following a judgment of O’Hanlon J in the High Court. The appeal by BNFL from that decision was dismissed by the Supreme Court. It will be necessary to consider those judgments, which are reported at [1996] I.R. 188, in more detail in connection with the plaintiffs’ claim that the issues in this appeal were determined conclusively in 1996. The motion to set aside service was heard by O’Hanlon J over a period of six days in the High Court. His judgment, delivered on 30th March 1995, is reported at [1996] I.R. 188 at 194. He held that the order of Carney J had been validly made and he declined to set it aside. O’Hanlon J described the plaintiffs’ claim as “a quia timet action to restrain the commission of the tort of negligence by [BNFL] in the commissioning and operation of the THORP project, and for damages insofar as they may be provable in respect of such activities on the part of the said defendant……” In respect of that part of the claim which makes complaint in respect of non-compliance with the two directives mentioned in the Plenary Summons, O’Hanlon J said (see page 200):
O’Hanlon J then gave consideration to whether the plaintiffs should have issued and served their proceedings outside the jurisdiction in accordance with Order 11A of the Rules of the Superior Courts, 1986, which gave effect to the provisions of the Jurisdiction of Courts and Enforcement of Judgments Act, 1988, and the Conventions annexed thereto (see S.I. No. 14/1989: Rules of the Superior Courts (No. 1), 1989). He concluded that it was not permissible “to proceed under O. 11A by reason of the fact that some of the forms of relief claimed do not come within the scope of that order.” He thought that “the declaratory relief claimed against the third defendant is in all probability outside the scope of the jurisdiction derived from the Jurisdiction of Courts and Enforcement of Judgments (European Communities) Act, 1988 (as amended)…” (see page 201). He noted that the attempt to enforce the provisions of the directives directly against BNFL “could be regarded as an administrative matter…” He believed that the “plaintiffs were correct in assuming that the application would not have been considered acceptable by the court if brought under the provisions of Order 11A.” This remark overlooks the fact that no application would have been necessary in order to avail of the provisions of Order 11A. I will need to consider these remarks more fully at a later stage, in dealing with the appellants’ submissions as to the effect of that decision and of the decision of this Court on appeal from it. Following the dismissal of the attempts by BNFL to set aside the service on it outside the jurisdiction, a new statement of claim was delivered on 9th March 1998. The statement of claim sets out at length the processes followed in the United Kingdom culminating in the grant to BNFL of: · Planning permission sought by BNFL in respect of THORP, which was granted in 1983; · Authorisations, granted under statutory powers, to discharge radioactive wastes into the Irish sea and into the atmosphere. As against BNFL, the plaintiffs, in the statement of claim, seek the following declarations: "i) Declarations that the construction and/or commissioning of the nuclear fuel reprocessing facilities which THORP has carried out or is in the process of completing at its site at Sellafield, Cumbria, constitutes a contravention of the provisions of:- A. Council Directive 85/337 of 27th June 1985 by reason of the non-existence of an environmental impact assessment as to their effects as required by the said Directive. And/or B. Council Directive 80/836 Euratom (as amended) by reason of the lack of justification within the meaning of the said Directive prior to the purported authorisations of liquid air or other discharges from the said THORP installation and project. ii) A Declaration that the operation of the THORP plant since its commissioning constitutes its commissioning constitutes a breach of the said two Directives. iii) A Declaration that the erection and commissioning of and/or the operating of the said THORP plant constitutes a breach of the Precautionary Principle and/or the Principle that Preventative action should be taken, contrary to Article 130R of the Treaty of European Union. iv) A Declaration that the said erection and commissioning and/or operation of the said THORP plant constitutes a breach of Customary International Law. v) Such further or other Declarations as to this Court seem fit." I have underlined those parts of the claims for relief which bear most precisely on the issue raised in this appeal. In addition, the statement of claim seeks a number of injunctions, including one restraining BNFL its servants or agents from: "(i) Carrying on its reprocessing activities until the said Directives have been fully complied with…" The declarations thus sought are slightly amended versions of what was contained in the first statement of claim delivered in March 1994. The statement of claim sets out the history of BNFL’s application for planning permission in respect of the THORP project. It includes the statement: “In May 1978 outline planning permission was granted and in 1983 full planning permission was granted.” It is further pleaded that the THORP project is a project within the meaning of Council Directive 85/337/EEC, the EIA directive, which is likely to have significant effects on the environment. It was, therefore, it is pleaded, subject to the requirement of an environmental impact assessment as provided by the directive. It is also pleaded that such an assessment was not carried out. Thus, the essential thrust of the statement of claim was that an environmental impact assessment was not carried in respect of a project for which planning permission was granted. Leaving aside entirely the difficult question of how a directive of 1985, which would have had to be transposed into national law, could affect a decision made in 1983, the only logical inference from these pleas is that the planning permission granted to BNFL was invalid. It is true, however, that the statement of claim contains no such express plea. As already recorded, it pleads merely that the THORP operations constitute a breach of the EIA directive, by reason of the failure of BNFL to carry out an environmental impact assessment. The statement of claim alleges separately that BNFL was in breach of its obligations under the Euratom directive (misdescribed in the statement of claim as “E.C. Council Directive 80/336”) as amended by Council Directive 84/467/Euratom. The complaint is that BNFL failed to provide adequate or satisfactory information to the public, including the plaintiffs, establishing that the gains to be derived from the operation of THORP exceeded the risks and the disadvantages which accompanied such operation. This is what is meant by “justification.” Consequently, the plaintiffs claim the declaration, quoted above, that “that the construction and/or commissioning of the nuclear fuel reprocessing facilities which THORP has carried out is in the process of completing at its site at Sellafield, Cumbria, constitutes a contravention of the provisions,” of the Euratom directive. On 13th February 2003, Finnegan P., by agreement of the parties to the action, ruled on a motion for directions issued by BNFL for the purpose of identifying the issues which arise between the plaintiffs and the first and second named defendants, on the one hand, and between the plaintiffs and BNFL, on the other hand. This has been described as a case-management procedure. The learned President divided the issues regarding BNFL into a “First Segment” and a “Second Segment.” The principal issue in the First Segment is whether the High Court has jurisdiction in respect of the alleged non-compliance with the two Directives cited. It does not concern whether the plaintiffs have a good cause of action, which is reserved to the Second Segment. The judgment of Peart J, from which the present appeal is taken, concerns only the First Segment, in respect of which the issues settled by the learned President are as follows: "1. Does the Court have jurisdiction to determine and declare that THORP should have been subject to an environmental impact assessment within the meaning of EC Council Directive 85/337 (as amended) and/or that it should have been subject to a "justification procedure" as provided by Euratom Directives 80/836 and 84/467 (as amended)? 2. Has the Court jurisdiction to grant a mandatory injunction compelling the third named defendant to comply with the said directives? 3. What is the applicable law by reference to which the plaintiffs' claims are to be determined? 4. If the Court has jurisdiction in respect of the plaintiffs' claims against the third named defendant should the court in all the circumstances decline such jurisdiction or stay the proceedings on the grounds of 'forum conveniens'?” Peart J determined the first issue against the plaintiffs, holding that the High Court does not have jurisdiction to determine the matters specified. In the light of his decision on this point, he decided: “if this Court has no jurisdiction to make the determinations and declarations specified in the first question, it cannot have jurisdiction to grant any injunction, the basis of which would be those very same determinations and declarations.” For the same reasons, he concluded that he did not need to decide the third and fourth questions. Peart J referred to the plaintiffs’ claims for declarations based on alleged non-compliance by BNFL with the two directives as “regulatory claims,” which is a convenient description. The plaintiffs have appealed against these determinations of Peart J. Dr Michael Forde, Senior Counsel, on behalf of the plaintiffs and appellants (whom I will continue to describe as the plaintiffs), propounded two essential arguments: 1. The question of jurisdiction has already been decided by the judgments and orders of the High Court and of this Court made in 1995 and 1996. The matter is accordingly res judicata and cannot be reopened. The decision of this Court is recorded in its order. It is not permissible to go behind the record to examine the reasoning of the Court. 2. On the merits, the net issue is whether BNFL complied with the requirements of the directives cited. Dr Forde submits that the plaintiffs are not seeking to question the validity either of the planning permission granted to BNFL to construct the plant or the authorisation granted to it to operate it. Peart J was incorrect to hold that a decision that non-compliance with the terms of the Directive “would necessarily involve a finding as to whether the authorisations were validly granted or not.” I will consider, firstly, whether the first question of the First Segment of issues, settled by the learned President to be determined has already been determined by this Court. Dr Forde submits that the very same issue was argued fully before this Court in1996 when the order of O’Hanlon J was affirmed: the matter is res judicata and, therefore, no longer open for consideration. However, he appears to have taken different approaches to this issue at different times. In the High Court, he argued strongly, and, as was accepted by Peart J, plausibly, that BNFL had moved to set aside the order giving leave to effect service of the proceedings outside the jurisdiction essentially on the basis that the regulatory claims were independent and free-standing. It is clear that BNFL argued in 1996 that the regulatory claims were independent and distinct from the tort claims. That being so, it was said that it followed that, because the application to set aside was rejected, that argument had to be regarded as having been rejected. In this Court, particularly at the hearing, a narrower approach was taken. Dr Forde argued that the decision of the Court was to be found in its order, which is unequivocal. This Court had rejected the objection to jurisdiction without any qualification. If BNFL had been unhappy that the order did not accurately reflect the reasons of the Court, as expressed in its judgment, it could have applied to have the order amended, using the procedure of speaking to the minutes of the order. It is important to note the conclusion of Peart J on the issue, as argued in the High Court: He held:
To resolve this question, it is necessary to consider the earlier proceedings. In the first instance, the order of Carney J simply records that leave to effect service out of the jurisdiction was granted under Order 11, rule 1, without specifying the particular paragraph of the rule under which it was made. O’Hanlon J held that order to be defective for that reason. He referred to the observations of Kennedy C.J. in Shipsey v British and South American Steam Navigation Co. [1936] I.R. 65. However, this defect did not affect his decision on the power to permit service outside the jurisdiction. O’Hanlon J proceeded to consider the applicability of Order 11, rule 1. He held that the tort alleged by the plaintiffs was a “tort committed within the jurisdiction” and thus covered by Order 11(1)(f) of the Rules. The activities of BNFL, though taking place outside the jurisdiction, resulted, it was alleged by the plaintiffs, in damage occurring within the jurisdiction. O’Hanlon J also held that BNFL was “a necessary or proper party to a claim brought against a person duly served within the jurisdiction,” for the purposes of Order 11, rule 1(h). He considered that there was a close link between the claim made against BNFL and that made against the state defendants. In spite of the observations about the desirability of specifying the applicable paragraph of Order 11, rule 1, the order refusing to set aside the order of Carney J did not specify any particular heading under that rule. O’Hanlon J also considered the extent to which the plaintiffs’ claims might be affected by the inclusion of matters of administrative law. Since there was an appeal to this Court from the judgment of O’Hanlon, it is the unanimous judgment of this Court, pronounced by Barrington J, which is relevant. By the High Court order made on foot of the judgment of O’Hanlon J, the court refused to set aside the order of Carney J giving leave to serve out of the jurisdiction on BNFL. BNFL contended, in its appeal, that the plaintiffs' case principally related to matters of public law (the granting of authorisations by a foreign government) and that these were administrative matters falling outside the parameters of the jurisdiction of the Irish courts as defined in O. 11 and O. 11A of the Rules. Barrington J considered that the plaintiffs’ claim was “a many faceted one,” but thought it clear, nonetheless, that “the basic claim [was] in the nature of a tort or quia timet action.”(see page 215). He cited the provisions of Order 11, rule 1 as follows: "(f) the action was founded on a tort committed within the jurisdiction; or (g) any injunction is sought as to anything to be done within the jurisdiction, or any nuisance within the jurisdiction is sought to be prevented or removed, whether damages are or are not also sought in respect thereof . .” He thought that, if the claim were to be regarded as “being essentially a tort or quia timet action, the case for service out of the jurisdiction under O. 11 has been made out.” (page 216). He then commented on the inclusion of the administrative-law claims as follows:
In the same vein, dealing with the applicability of the Brussels Convention, Barrington J noted that the plaintiffs’ legal advisers had deliberately chosen not to invoke Order 11A of the Rules of the Superior Courts, but to apply for leave under Order 11 “in accordance with the traditional procedure for applying for service out of the jurisdiction.” (see page 217.) In those circumstances, he thought it unnecessary to discuss the Convention further. It is clear, therefore, that the Convention is not relevant for the purposes of this appeal. However, Barrington proceeded to consider the submissions of BNFL to the effect that the Irish courts have no jurisdiction to deal with the plaintiffs’ claims. It appears that BNFL’s case was that the plaintiffs were essentially seeking to interfere with the decisions of a foreign sovereign power, by embarking on judicial review of decisions of the competent authority in another State. Counsel for the plaintiffs, on the other hand, disputed that characterisation of the claim. Looked at in that light, Barrington simply reiterated the point already decided, namely that the plaintiffs’ claim related to the harmful effects, felt in Ireland, of the activities of BNFL and that this was simply a matter of national law. He continued as follows:
Finally, Barrington J considered “European Law.” He discussed issues which might arise such as the continuance of the old system of national sovereignty. He mentioned the supremacy of Community law and the obligation of the courts of the Member States to give effect to it. His conclusion was as follows:
The order proposed was simply that the appeal be dismissed and the order of O’Hanlon J be confirmed. That was the tenor and effect of the order of this Court dated 24th October 1996. As I have already mentioned, counsel for the plaintiffs has contended that the jurisdiction issue is res judicata, on two different bases. The first, namely that the High Court and the Supreme Court should be deemed to have decided in 1995 and 1996 respectively that the High Court had the required jurisdiction, was rejected by Peart J on an analysis of the judgments delivered at that time and in the light of the arguments then presented. That conclusion was patently correct and Dr Forde has not sought to disturb it. Barrington J expressly and with deliberation abstained from pronouncing any view on the jurisdiction of the Irish courts in respect of the regulatory claims. He did not even determine that the plaintiffs had advanced such a claim. Hence his reference to “shadow boxing.” The alternative approach now adopted by Dr Forde on behalf of the plaintiffs is that the issue of jurisdiction must be regarded as having been decided by simple reference to the orders of the Court. Even approaching the matter on that narrow basis, it is clearly incorrect. It can be gleaned from the order of Carney J, the later order of O’Hanlon J declining to set it aside and the order of this Court affirming the order of Carney J only that leave had been granted pursuant to Order 11, rule 1 of the Rules of the Superior Courts. Rule 1 of that Order lists the cases in which leave may be granted for service out of the jurisdiction. None of those sixteen headings is, by any stretch, capable of encompassing the regulatory claims. It is clear, however, that both O’Hanlon J and Barrington J took the view that that the claim should be considered essentially as a an action in tort combined with a quia timet element, bringing the case within Order 11, rule 1, sub-paragraphs (e) and (f). In addition, BNFL was considered, for the purposes of sub-paragraph (h) to be “a necessary or proper party to a claim brought against a person duly served within the jurisdiction.” In my view, it cannot be inferred from the orders made that this Court has upheld the jurisdiction of the High Court to determine anything more than the claims so described. In particular, this Court did not determine expressly or impliedly that the High Court had jurisdiction to determine the regulatory claim. It has been pointed out on behalf of BNFL that the order of Finnegan P did not settle this issue of res judicata, as one of the issues to be determined. In view of the clear conclusion I have reached, it is not necessary to rule on that argument. I am satisfied that the matter was not determined by the judgments delivered in 1995 and 1996. I turn then to the substantive issue. The question of principle is the first of the questions which the learned President set down as needing to be decided:
This formulation implies, of course, that the plaintiffs are putting forward a claim of the type described. Barrington J, in his judgment of 1996, spoke of “shadow boxing,” because of the lack of clarity as to how the action would proceed. The plaintiffs are not seeking, according to Dr Forde, to invalidate or to quash the authorisations respectively granted to BNFL under English law. They do not contend that those authorisations are ultra vires or otherwise invalid under the legal regime which enables them to be granted. It is necessary, in these circumstances to identify as clearly as possible the nature of what Peart J has called the regulatory claim. Regrettably, it does not appear that the period of “shadow boxing” has entirely come to an end. The plaintiffs claim that the construction and commissioning of THORP constitutes a contravention of the provisions of the two directives. Insofar as the EIA directive is concerned, the contravention is stated to arise from “the non-existence of an environmental impact assessment as to their effects as required by the said Directive.” Insofar as the Euratom is concerned, it is stated to arise from “the lack of justification within the meaning of the said Directive prior to the purported authorisations of liquid air or other discharges.” The plaintiffs have made it abundantly clear, in replies to requests for particulars, that their central contention is that BNFL have acted in breach of legally binding norms prescribed by these directives. They explain their reference to the authorisations being “purported” as follows (paragraph 68 of the plaintiffs’ particulars):
Even more explicitly, the plaintiffs state (particular 70):
It is immediately apparent that the regulatory claim, as now articulated by the plaintiffs, alleges that BNFL have acted unlawfully by failing to provide an environmental impact assessment, as required by the EIA directive and to provide justification of the sort required by the Euratom directive and that, as a consequence, its operations are unlawful. The plaintiffs have endeavoured, by careful drafting, to refrain from alleging directly that the authorisations are invalid. They have been unable, even by this device, to avoid referring to “procedures” which are obviously the regulatory procedures under which the directives are implemented in the law of the United Kingdom. They do allege, however, that BNFL is acting unlawfully by reason of non-compliance with the requirements of the directives. I believe that it is an unavoidable implication of that argument, as acknowledged on behalf of the plaintiffs, that the respective consents or authorisations obtained by BNFL are invalid. I am fully conscious of the need to observe the strict limits of the question under discussion. It is jurisdiction only that is in issue and not the strength of the plaintiffs’ case. For example, I must assume, for present purposes, that the EIA directive is capable of applying to a planning decision made before it entered into force, though BNFL expressly contest the applicability of that Directive. However, it is impossible to avoid the legal context in which the question of jurisdiction itself arises. The Member States were obliged to take “the measures necessary to comply with this Directive within three years of its notification,” and to “communicate to the Commission the texts of the provisions of national law which they adopt in the field covered by this Directive.” (see Article 12 of the EIA directive). The principal substantive provision is Article 2, which provides, in part: "1. Member States shall adopt all necessary measures necessary to ensure that, before consent is given, projects likely to have a significant effect on the environment by virtue inter alia, of their nature, size or location are made subject to an assessment with regard to their effects. 2. The environmental impact assessment may be integrated into the existing procedures for consent to projects in the Member States, or, failing this, into other procedures or into procedures to be established to comply with the aims of this Directive.” Article 3 provides:
- soil, water, air, climate and the landscape, - the inter-action between the factors mentioned in the first and second indents, - material assets and the cultural heritage.” It is for the Member States to integrate the requirements regarding environmental impact assessments into their planning laws. It is the designated authorities of the Member States who make these decisions. It is for them to ensure that there is an environmental impact assessment where that is required. It is impossible for the plaintiffs to allege that BNFL have acted unlawfully by failing to provide such an assessment and that their operations are, consequently, unlawful, without, by clear and obvious necessary implication, inviting the court to question the validity of the planning decision. There is no disembodied, notional or abstract concept of illegality. Illegality must attach to the concrete decision which follows the planning process. The difficulties for the plaintiffs in formulating their argument without facing up to this inevitable proposition are well illustrated by the course of the oral argument in this Court. While disclaiming any intention to attack the English administrative acts, Dr Forde repeatedly stated that the issue concerned a foreign body, BNFL, which was acting in a manner incompatible with European Community law, by reason of non-compliance with the directives. At times, he described this as a tort, consisting in acting in breach of the directive in a manner which causes damage. He said that BNFL was not, as a matter of EC law, legally entitled to operate the THORP facility, because, inter alia, of the absence of the justification required by the Euratom directive. The plaintiffs were entitled, he said, not to be subjected to the risk without the necessary processes having been gone through. Authorisations by the UK authorities were behind the activities of BNFL. Before expressing my conclusions on this issue, it is necessary to highlight a distinction. This can conveniently be done by reference to the judgment of Barrington J delivered at the earlier phase of this case in 1996. Barrington J speculated that, BNFL might, in defending the claim, attempt to justify the effects in Ireland of its activities in England by reference to the law of the United Kingdom. On that hypothesis, he noted the plaintiffs’ statement said “that they would then invoke the alleged non-compliance by British Nuclear Fuels with the European Directives pleaded to attack any administrative authorisations which British Nuclear Fuels may have received for the THORP project.” In the event, not surprisingly, the defence of BNFL contains no plea that the authorisations they enjoy under the law of the United Kingdom confer any exemption from liability for damage caused in Ireland which is actionable under Irish law. The law of one state could not protect a wrongdoer from liability for a wrong committed under the law of another state. Indeed, Barrington J observed: “Prima facie the relevant law would appear to be the lex loci delicti rather than the law of the United Kingdom.” That proposition is not affected by the fact that the plaintiffs rely on directives respectively of the European Communities. Directives are addressed to the Member States. Each Member State is obliged to implement directives by transposing them into its own law. What is at issue is the jurisdiction of an Irish Court to determine the lawfulness or validity, under the law of the United Kingdom, of administrative decisions made in that jurisdiction in accordance with national law and procedures. It seems to me elementary that our courts have no power to review the lawfulness of administrative decisions made by English administrative bodies under English law, any more than the English courts would have corresponding power to pass judgment on Irish administrative decisions. The courts of each country alone have the power to review the legality, within their own frontiers, of decisions of their own government and administration. McGuinness J decided as much in Adams v Director of Public Prosecutions and Her Majesty’s Secretary of State for Home Affairs [2001] 1 IR 47. The applicant had been extradited to Ireland from Northern Ireland, with his consent, on larceny and forgery charges, for which he was tried and convicted. He served his sentence but was then charges with a number of sexual offences. The British Home Secretary gave a certificate waiving specialty in respect of the latter. The applicant applied to the High Court for an order of certiorari in respect of the Home Secretary’s certificate. Leave to apply was granted, and purported service was effected at the Foreign and Commonwealth Office in London. Proceedings were brought, successfully, to set aside the leave and to dismiss the proceedings. On appeal to this Court, McGuinness J, giving the unanimous judgment of the Court, stated (see page 51):
Responding to a suggestion that the decision of the Home Secretary represented the exercise by him of a power conferred by Irish law, she ruled (see page 54):
Although the parties placed a number of English and American authorities before the Court, I believe that the judgment of McGuinness J represents a clear, straightforward statement of the principle which is most directly applicable. Buttes and Oil Company v Hammer and another [1981] 3 All ER, one of the principal cases cited in argument, was a case of bewildering complexity. One Californian oil company commenced a defamation action against another, together with the latter’s principal owner, in the English courts. The two companies were in dispute about the ownership of oil concessions at sea in the Arabian Gulf. Resolution of the dispute turned to a significant extent on the validity of a decree made by the ruler of an obscure state called Sharjah extending the territorial limits of the state so as to include a location in which the defendant company claimed to have made a find of oil operating under a concession from the neighbouring state of UMM al Qaiwan. The plaintiff company relied on a concession granted by the ruler of Sharjah in respect of this extended area. The location was just off an island called Abu Musa, which had, to complicate matters even further, been claimed by Iran. Add to that the fact that, at the relevant time, the foreign relations of the two states were controlled by the government of the United Kingdom, that the ruler who made the decree was assassinated and that a complex overall settlement was worked out entailing sharing of the benefits of the concession between the plaintiff company, the two states and Iran but omitting the defendant company. The defamation action concerned a statement made in England by the defendant alleging that the plaintiff company had fraudulently and otherwise improperly induced the ruler of Sharjah to make the contested decree. During the course of discovery issues arose concerning claims of privilege in relation to documents of a foreign sovereign state. Lord Wilberforce spoke for a
unanimous House of Lords at the end of a number of years of
labyrinthine litigation. He reviewed the history over the centuries
of English (and some American) law regarding the principle that the
English courts would not pronounce on rights in immovable property
situated abroad, the doctrine of sovereign immunity and other
cognate principles under the umbrella of the “act of state.” In the
end, he identified the most directly applicable principle as being
that “the
[English]
courts will not
adjudicate on the transactions of foreign sovereign states.”
He preferred to
describe this principle, not as concerned with acts of state, but
“one for judicial
restraint or abstention.” He concluded, at page 628:
A leading American statement, cited by Lord Wilberforce, was that made by Fuller CJ in Underhill v Hernandez (1897) 168 US 250 at 252:
I do not believe it to be necessary to lay down any very broad principles in order to determine the present case. We are not concerned with sovereign immunity or acts of state. We are concerned with the much simpler and narrower question of whether the courts of one state have jurisdiction to determine the validity of administrative acts of the authorities of another state which are not claimed to have any legal effect outside the borders of the latter state. It is important to register some very simple but important observations concerning the claims of the plaintiffs. The earlier decision of this Court has very clearly ruled that the High Court has jurisdiction to determine the plaintiffs’ claims based on the torts of negligence and nuisance. BNFL have been at pains to emphasise that they do not question that jurisdiction. They do not raise any defence based on the existence of any planning permission or consent or other authorisation granted under English law. It has always been clear that, it was no defence to a nuisance or negligence action that the defendant had a valid planning permission authorising the activities of which the plaintiff complains. A fortiori, it would be no defence to prove that the activities were permitted or licensed under the laws of another state. Secondly, the European Communities and now the European Union are international organisations which respect and expect their Member States to respect the rule of law. In particular, Member States are bound to give effect to the provisions of the laws of the European Communities within their territories. They are bound to transpose directives into their national legal systems. The courts of the Member States are bound to afford protection to individuals and to ensure that they enjoy the rights conferred on individuals by Community law. They must afford effective access to their courts for those purposes both to their own nationals and to the nationals of other Member States. Those principles apply, for example, to any legal procedures which enable the validity of national administrative acts to be contested. AS BNFL points out, the plaintiffs have the right to apply in the courts of England and Wales for any relief they are advised to seek in respect of the administrative authorisations of which they complain. Whether they could do so successfully is another matter. Naturally, there may be questions of delay and of the effects of the decision in the Greenpeace case, but those are all matters of English law. The ultimate question in the present case is whether the courts of one Member State (Ireland) have jurisdiction to determine the lawfulness and validity of administrative procedures and decisions of another Member State (the United Kingdom), where, as is claimed here, those decisions have rendered lawful by authorising them to be carried out within the boundaries of that other state activities alleged to cause damage in the first Member State. I am satisfied that Peart J was correct to hold that the High Court does not have that jurisdiction. The authorisations under which BNFL operates were granted under the laws of the United Kingdom. The plaintiffs allege that BNFL acted in the absence of an environmental impact assessment, insofar as the planning consent is concerned, and without the justification required by the Euratom directive, insofar as the authorisation is concerned. This is not, however, a case where it is alleged that the directives were not transposed into the law of the United Kingdom. Clearly, they were. The decisions under which BNFL operates were made pursuant to the applicable provisions of the laws of the United Kingdom. The courts of the United Kingdom have jurisdiction to determine the validity of those decisions, in accordance with, in this case, English law. Community law may, of course, become relevant, especially on questions of interpretation of national law in the light of the directive. In that event, the courts of that country have power to refer questions of interpretation for preliminary ruling to the Court of Justice of the European Communities. It is not the function of the courts of another Member State to pronounce on the validity of such administrative decisions. Points of principle combine with practical considerations to justify this statement. The principle is the comity of courts. This Court has not been invited to follow the decision of Potts J in the Greenpeace case. Nonetheless, it is a ruling of an English court, made according to English law, on the validity of the authorisations under which BNFL operates. As I interpret the plaintiffs’ claim, the plaintiffs ask the Irish courts to give judgment on the same matters. Clearly, a question could arise as to the status of the decision of the English court and whether an Irish court should respect it. The principle of comity requires that the courts of one state abstain from pronouncing on matters such as the regulatory claims, in respect of which the primary and obvious jurisdiction rests with the courts of another state. In addition, there are practical considerations. Only an English court will be familiar with English law and procedure. It is a matter for English courts, where they are obliged to do so, to interpret national law in the light of Community law. It would be patently absurd for the courts of another Member State to exercise such power. Apart from anything else, there would be a real risk of conflicting decisions, if the same administrative act were to be reviewed according to the laws of two or more Member States. Ultimately, where the courts of one jurisdiction pronounce judgment on the validity of the administrative acts of another, the question of enforcement necessarily arises. This is a further practical question. This point was very succinctly addressed by McGuinness J in the Adams case. The very theoretical hypothesis that such jurisdiction could exist would be defeated by the simple rhetorical question which she posed: “… how would such an order [of the court] be enforced?” For these reasons, I believe Peart J was correct to answer the first question in the way he did. That conclusion is determinative of the appeal. It follows, as Peart J held, from the fact that the High Court has no jurisdiction to determine the matters set out in the first question, that it could have no jurisdiction to grant a mandatory injunction compelling BNFL to comply with the said directives. It follows equally that there is no purpose in answering the third question regarding the applicable law and that no question of forum conveniens arises. I would dismiss the appeal and affirm the order of the High Court. | ||||||||||||||