THE HIGH COURT
Record No: 840P/2005
SHELL E & P IRELAND LIMITED
PHILIP MCGRATH, JAMES PHILBIN, WILLIE CORDUFF,
MONICA MULLER, BRID MCGARRY, PETER SWEETMAN
THE MINISTER FOR COMMUNICATIONS MARINE AND NATURAL RESOURCES, IRELAND AND THE ATTORNEY GENERAL
Defendants to the counterclaim of second and fifth defendants
Update (20th November 2008)
1. On 18th and 19th November 2008, Judge Laffoy heard the application, on motion, of the State to determine as a preliminary issue whether the 2nd and 5th Defendants are precluded from raising “public law issues”.
2. McGarr Solicitors act for Brendan Philbin and Brid McGarry, the 2nd and 5th Defendants. Their counsel are Lord Dan Brennan QC and Mark Dunne BL. The Chief State Solicitor acts for the Minister, Ireland and the AG. Their Counsel are James Connolly SC and Charles Meenan SC. Eugene F Collins act for SEPIL. Its counsel are Patrick Hanratty SC and Declan McGrath BL.
3. The proceedings commenced in April 2005, when Shell E & P Ireland Ltd. (“SEPIL”), issued plenary summons proceedings against the defendants. Mr. Philbin was committed to prison for 3 months, effectively, on the application of SEPIL on the grounds that he had breached an injunction restraining him from preventing SEPIL from entering his land.
4. In the events that have happened, SEPIL applied for and received the leave of the court to discontinue its claims against the defendants. This happened after SEPIL had received the defences of the defendants and the 2nd and 5th Defendants had counterclaimed against SEPIL and successfully joined the Minister and Ireland and the AG as further defendants to the counterclaim. SEPIL’s discontinuance did not end the counterclaim. The counterclaim is substantial. As against the Minister, Ireland and the AG it claims that certain Compulsory Acquisition Orders made by the Minister regarding the land of the defendants are invalid. It also claims that a consent allegedly made by the Minister in favour of SEPIL, to construct a pipeline over the defendants’ land is invalid.
5. The Minister, Ireland and the AG assert that these are “public law issues”. They assert that issues like these can be challenged only under the procedure set out in Order 84 of the Rules of the Superior Courts. They assert that, that being so, those claims of the defendants are late. They assert that the claims, to be admissible, should have been made within the time limits of 3 or 6 months (at most) after the making of the CAOs and the consent.
6. The defendants deny they are confined by the provisions of Order 84 and/or its “time limits”. They say that Order 84 is not an exclusive procedure; that it cannot be used to shut out the hearing of claims against the State where the State has wronged citizens, particularly with regard to the private property of the citizen. They say, consequently, that the counterclaim should proceed to a full hearing on its merits.
7. Judgment has been reserved.