The High Court dismissed applications by Cork County Council and the State parties to have a dispute over a 1996 settlement decided before the rest of a damages action brought by Atlantic Shellfish Limited and David Hugh-Jones. The court did not decide whether the settlement had been breached or whether the plaintiffs can revive claims from earlier proceedings.
The plaintiffs had operated an oyster fishery in Cork Harbour near Rathcoursey, Midleton. They allege that untreated sewage discharged under the Midleton Sewage Scheme contaminated the fishery, contributed to food poisoning outbreaks and damaged their business, which apparently ceased operating in 2002. The defendants deny liability.
Earlier proceedings brought in 1992 were compromised in 1996. The plaintiffs plead that Cork County Council and the Minister for the Marine and Natural Resources agreed to pay IR£500,000 in damages for loss of goodwill and that the council undertook to bring a secondary wastewater treatment plant with ultraviolet disinfection into operation by 30 June 2000. They allege the plant was not brought into operation by that date, and say the failure entitled them to treat the settlement as repudiated and pursue the earlier claims again. Alternatively, they seek to enforce the settlement and claim damages for breach. These are pleaded positions, not findings in this judgment.
The defendants sought a preliminary hearing, or a separate first stage of the case, on whether the alleged failure amounted to repudiation and, if so, whether the settlement was at an end and the earlier claims could be reopened. The council’s application was prompted in part by an expert report estimating the plaintiffs’ combined alleged historic and future losses at about €20 million. The report put pre-settlement losses, after credit for the IR£500,000 payment, at €946,544 including interest.
Justice Laffoy concluded that the proposed early determination could not fairly be made on the pleaded facts alone. Whether the alleged breach was fundamental and brought the settlement to an end involved mixed questions of law and fact, including the parties’ dealings before and after the agreement. She also noted that the defendants’ applications came years after the plaintiffs had delivered their claim and after substantial work, including discovery, had taken place.
The court dismissed both applications. It made no ruling on liability, the alleged breach, whether the settlement remains in force, or whether the pre-1996 claims may ultimately be pursued. The proceedings remain ongoing. The judge said they should be case-managed and suggested that liability could be determined before the amount of any damages.