The High Court has directed that two related proceedings involving Wicklow County Council and waste companies proceed in a two-part trial, with factual and legal issues to be addressed before evidence about current environmental risks.
In a ruling delivered on 26 April 2017, Mr Justice Richard Humphreys said the hearing was in its sixth week. Four witnesses had given evidence, with at least nine more expected. The court was considering a motion by the council seeking directions on how to divide the trial into modules.
The judge said the general position was a single trial of all issues, but the court could order separate stages where that would be just and convenient. He weighed the potential savings in court time and costs against the risk of deciding hypothetical questions. He also considered the possibility that European Union law questions could require a reference to a European court, which could otherwise interrupt the hearing of lengthy technical and scientific evidence. He stressed that he was not suggesting a reference was likely.
The first module will include evidence and submissions on a conflict between the evidence of Mr Ó Laoire and Mr Sheehy, insofar as relevant, excluding Mr Ó Laoire’s evidence about current environmental risks. It will also consider whether the council’s invocation of section 56 was bona fide and the extent of the council’s responsibility for dumping at the site before section 56 was invoked.
Module I will also hear submissions on specified European Union law questions and any other EU law points that can be determined at that stage. The court will consider whether Brownfield Restoration Ireland Limited should be struck out of the council’s proceedings against John O’Reilly and others, and any costs consequences that can be determined then.
After those matters, the judge said he would either decide the issues, refer questions, or do both. He retained the ability to move an issue to the second module if later consideration showed it belonged there. Module II will address evidence and submissions about current environmental risks and related listed questions.
The ruling also set out immediate procedural steps: counsel were to confirm whether cross-examination on affidavits from earlier proceedings was complete; the court was to consider on 27 April an application to file a further affidavit from Mr Duffy, if it remained live; and the parties were to clarify in writing the factual premises of specified legal questions. The judge proposed that Brownfield’s counsel draft a statement for the council’s counsel to amend, with the court resolving any remaining disagreement.
The ruling set the sequence for the ongoing hearing. It did not resolve the underlying disputes, determine the legal questions, decide whether Brownfield should be struck out, or make a final order on any EU reference.