Shell E & P Ireland Ltd v McGrath & ors

Judgement in Shell E & P Ireland Ltd v McGrath & ors

2.1 Shell issued proceedings against the six named defendants on the 4th March, 2005 with a statement of claim being delivered on the 18th April. Damages were sought together with various orders restraining the defendants from a variety of alleged activities in respect of relevant lands at Rossport which had been the subject of compulsory acquisition orders ("CAOs") made by the Minister under s.32 of the Gas Act, 1976 (as amended).

2.2 As a result of a judgment of Laffoy J. delivered on the 23rd March, 2006, [2006] 2 I.L.R.M. 299, an amended defence and counterclaim were filed on the 30th March, 2006. In that counterclaim, damages were sought against Shell together with various declarations designed to establish that the CAOs were invalid and of no effect, that a consent granted by the Minister under s.40 of the Gas Act, 1976 ("the consent") was void together with various constitutional claims and claims arising under the European Convention for the Protection of Human Rights and Fundamental Freedoms ("ECHR"). By virtue of the reliefs sought in that counterclaim, it was, of course, necessary to join the Minister and the State defendants ("the Minister") as defendants to that counterclaim.

2.3 The Minister filed a defence to the counterclaim on the 27th April, 2006. In that defence, amongst other things, the Minister alleged that the defendants were guilty of laches or delay in seeking equitable relief. In addition the Minister asserted that the defendants had failed to comply with the time limits specified in O.84 of the Rules of the Superior Courts in seeking to challenge the validity of the CAOs and the consent. It should also be noted that Shell's claim against the fourth and sixth named defendants was struck out by Laffoy J. for want of prosecution on the 28th September, 2006.

2.4 On the 18th April, 2007 Laffoy J. granted an application brought by Shell in which leave was sought under O.26, r.1 of the Rules of the Superior Courts, to discontinue the proceedings against the remaining defendants. However, the counterclaim remained in being. It is clear, therefore, that from early 2007 onwards the only remaining issues which arose in these proceedings were those which arose on the counterclaim which, as has been pointed out, involves claims by the defendants against both the Minister and Shell in which the validity of both the CAOs and the consent were challenged and in which damages was sought against Shell.

2.5 Thereafter Laffoy J. directed (by order of the 23rd April, 2007) that the public law issues arising on the counterclaim be tried as preliminary issues between the defendants and the Minister. Those issues involved the questions raised as to the validity of both the CAOs and the consent together with issues as to the standing of the defendants to raise the constitutional issues advanced coupled with questions as to whether those issues were moot.

2.6 Points of claim and points of defence were, in accordance with the court's directions, filed. The Minister, in the relevant points of defence, insofar as material to the issues which arise on this appeal, asserted that there had been delay or laches in seeking the declarations as to invalidity of the CAOs and the consent and that there had been a failure to comply with the time limits specified in the Rules of the Superior Courts.

2.7 On the 17th December, 2007, Laffoy J. directed that the questions concerning whether the counterclaim was out of time in seeking to raise a challenge to the validity of the CAOs and the consent be tried first. Those matters were heard with judgment being delivered on the 4th March 2010, [2010] IEHC 363. Against the background of that procedural history it is next necessary to turn to the High Court judgment.

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