The Supreme Court has allowed an appeal by the Minister for Communications, Marine and Natural Resources, ruling that challenges to compulsory acquisition orders and a ministerial consent connected with the Corrib gas pipeline were brought out of time.
The appeal concerned a preliminary issue in a counterclaim brought by six defendants against Shell E & P Ireland Limited and the State. The defendants sought declarations that the orders and consent were invalid, as well as damages from Shell. The High Court had held that judicial review time limits did not apply by analogy to the counterclaim. The Minister and other State defendants appealed that decision.
In a judgment delivered on 22 January 2013, Mr Justice Clarke said the Supreme Court was concerned with the time limits for challenging the statutory decisions, not the legality or merits of the pipeline proposal. The court held that Order 84, rule 21 of the Rules of the Superior Courts applied by analogy to the counterclaim because it sought to invalidate public law measures and used that asserted invalidity as the basis for a damages claim.
The court distinguished a challenge made only to defend proceedings that rely on a public measure. By the time of the appeal, Shell had discontinued its claims against the remaining defendants, leaving the counterclaim as the only live claim. The court said the counterclaim went beyond a defence and was a substantive claim in its own right. It left for a future case whether, and to what extent, principles from the UK decision in Wandsworth applied in Ireland where a defendant challenges a measure relied on against them.
The compulsory acquisition orders were made and the consent granted in the first half of 2002. The counterclaim was filed on 30 March 2006. The High Court had considered whether time should be extended if the rules applied, but found no basis to extend it. No cross-appeal was brought against that finding.
The Supreme Court allowed the Minister’s appeal and substituted an order dismissing the challenges to the orders and consent as out of time. It did not determine their validity, the damages claim, or the underlying merits of the pipeline proposal.