The High Court has allowed Shell E & P Ireland Limited to discontinue its claims against four defendants in litigation over the Corrib Gas pipeline, on condition that Shell pay their costs to date on a party and party basis. The court also recorded Shell’s undertaking not to rely on existing compulsory acquisition orders and to take any necessary steps to remove their effect from the defendants’ land titles.
In a judgment delivered on 18 April 2007, Miss Justice Laffoy said the claims could be discontinued because the defendants could pursue relevant issues through their counterclaims. She did not decide whether Shell had the legal rights it claimed or whether the defendants’ challenges to the statutory consent and acquisition orders would succeed.
Shell had sought to end claims alleging trespass, nuisance, assault and intimidation connected with works on land along the proposed pipeline route. Those were allegations, not findings. Shell said it intended to reroute the onshore pipeline, seek a new consent and obtain any required acquisition orders for the revised route. It said discontinuance did not acknowledge weakness in its case. The judge accepted that statement at face value, saying the application was based on affidavit evidence and did not allow her to determine Shell’s motivation.
The second and fifth defendants sought conditions including an inquiry into damages under Shell’s undertaking given when it obtained an interlocutory injunction. The court ruled that any entitlement to such an inquiry survived discontinuance, but deferred directions on its timing and scope because they depended in part on the counterclaims. It declined to shift the burden of proof on the validity of the consent and acquisition orders.
The judge ordered Shell to pay the defendants’ costs of its claim to date, excluding the costs of contempt proceedings and an order made on 7 April 2006, which were under appeal to the Supreme Court. Costs are to be taxed if not agreed. The judge rejected the request for solicitor and client costs, finding no basis on the material before her to infer conduct by Shell warranting that outcome.
On the State parties’ directions motion, the court ordered a public law module to be tried before other issues. It will address challenges to the 2002 consent and compulsory acquisition orders, and whether constitutional issues are justiciable in light of locus standi and mootness. The question whether challenges to the consent or orders were out of time under Order 84, rule 21 is to be tried as a preliminary issue within that module. The defendants are to deliver points of claim within three weeks after receiving discovery; the plaintiff and State parties then have three weeks to respond.
The court extended the plaintiff’s and State parties’ time to provide discovery by three weeks from 18 April 2007. It struck out the second and fifth defendants’ motion seeking to strike out claims and defences for discovery failures.