The High Court refused to dismiss Wicklow County Council’s waste proceedings against Samuel Steers, but directed a preliminary hearing on whether the law allows “fallback” orders against individual company directors or shareholders.
In a judgment delivered on 2 March 2007, Mr Justice Clarke said the legal question could, if decided in Steers’s favour, end the case against him. He ordered that question to be tried between Steers and the council. He did not decide whether the asserted jurisdiction exists or whether an order could ultimately be made against Steers.
The council’s substantive proceedings concern alleged unlawful holding, recovery or disposal of waste at Whitestown, County Wicklow. The judgment says the council discovered an apparently unlawful dump on 21 November 2001 and that there was no suggestion of further unlawful dumping at the site after that date.
Steers was added as a defendant by an order made on 8 February 2006. It was common ground for this application that he was not a Dean Waste director when the alleged dumping occurred. He later became a director and had since left the company. The council’s case, as described by the judge on the evidence then available, was that Steers might be liable on a fallback basis for obligations of Dean Waste, at least insofar as they could be attributed to a period when he was a director.
Steers argued that the proceedings against him were bound to fail because no fallback jurisdiction existed, or because it could not apply to someone in his circumstances. The judge declined to decide the broader legal challenge at the dismissal stage: earlier High Court decisions supported the existence of such a jurisdiction, so the claim could not be treated as certain to fail. He said whether any fallback order could apply to Steers would depend on the facts and could not be resolved in the dismissal application.
The court also rejected Steers’s requests to dismiss the case on delay and fair-trial grounds. The judge found no inordinate or inexcusable delay, noting the council’s explanation that environmental testing and identifying potential defendants involved complex questions. Steers did not claim that delay had impaired his ability to defend the case. He argued instead that, had proceedings begun earlier, he could have declined to become a Dean Waste director. The judge said that circumstance might be relevant at trial, but did not establish prejudice warranting dismissal at this stage.
The preliminary issue is whether, on a proper construction of the Waste Management Act 1996 as amended, a fallback order may be made against individual directors or shareholders. Clarke J said the hearing of that issue should not delay the substantive proceedings. Steers must participate fully in them unless and until a favourable order is made on the preliminary issue. The court left logistical arrangements for a further discussion with counsel.