The High Court has directed the Electricity Supply Board (ESB) to file a further affidavit before deciding whether it must disclose documents about changes to electricity-sector arrangements. It refused the other categories of discovery sought by Hamwood Stud Unlimited Company and the individual applicants in their judicial review proceedings concerning works to a transmission line across the stud.
Mr Justice David Holland delivered the judgment on 18 April 2023. The applicants seek to quash wayleave notices served by ESB on 25 February 2022 for work on the Maynooth–Woodland transmission line, which crosses Hamwood Stud at Dunboyne, County Meath. The discovery motion was against ESB and EirGrid plc, which was a notice party. The judgment addressed access to documents, not the ultimate lawfulness of the notices or the applicants’ judicial review grounds.
For Category 1, the applicants sought documents about compliance with 2013 decisions concerning the separation of roles in the electricity sector. The judge said the applicants had a stateable case that the decisions required changes to existing arrangements, while ESB disputed that relevant obligations were imposed on it. He directed ESB to file an affidavit setting out whether, how and to what extent specified measures had been implemented, and its position on whether the “reasonable period of time” in the European Commission decision had expired. ESB may also describe relevant ring-fencing arrangements. The court adjourned the discovery question for this category until that affidavit is filed; it did not order discovery of those documents at this stage.
The judge refused Category 2, which sought documents about ESB’s and EirGrid’s respective roles under their 2006 Transmission Infrastructure Agreement in engagement with wayleave recipients. The parties did not dispute that ESB had conducted the engagement. The remaining questions were about interpreting the agreement and applying it to agreed facts, which the judge said did not justify discovery.
Categories 3 and 4 sought documents about the projects’ purpose and electricity sales to Intel. The judgment records that project documents showed a substantial driver was increased capacity to supply Intel. But the judge found the applicants’ competition-law allegation insufficiently particularised and unsupported by evidence, so it did not establish a factual basis for discovery. He also refused Category 3 because there was no material factual dispute about that project driver. He did not decide whether confidentiality or Intel’s opportunity to be heard would independently affect Category 4.
The court refused all other discovery sought and deferred costs until Category 1 is resolved. It directed ESB to file the affidavit by 5 May 2023 and adjourned the matter to 8 May for mention only.