The High Court has ordered Shell E and P Ireland Limited and State parties to make discovery of specified documents in proceedings concerning the Corrib Gas Field and an onshore pipeline. It refused a separate application by two defendants for discovery against the Minister, finding that the request was an unsupported search for evidence. The court also formally dismissed the plaintiff’s application to have a public law issue tried as a preliminary issue after the company chose not to pursue it.
In a judgment dated 31 July 2006, Ms Justice Laffoy addressed motions argued on 9 and 10 May. The plaintiff’s case against six named defendants was not determined in this ruling; the judgment dealt with discovery, the proposed preliminary trial and case-management issues.
The court directed the plaintiff to swear an affidavit of discovery covering categories it found relevant and necessary to resolve the disputes fairly. These included material concerning the gas reception terminal’s quantitative risk assessment, consent for the pipeline, the deviation strip and associated infrastructure, planning permission, possible excessive pipeline use and the development plan. It also ordered discovery of insurance documents relating to the onshore pipeline. The court said commercially sensitive material could still be discoverable unless privileged, with protective measures to be considered if needed.
Some requests were refused. The court did not order discovery of the Shell FRED Modelling package, certain broad or insufficiently relevant document categories, or the plan of development category sought in one motion. It directed the State parties to make discovery in specified categories, including the petroleum lease and the Corrib Gas Field development plan, and said their affidavit should address whether they held documents about planning permission. Other State discovery requests were rejected as irrelevant or unnecessary.
The first and third defendants had sought documents from the Minister about the making and purpose of European Communities (Internal Market and Natural Gas) (Compulsory Acquisition) Regulations 2001. The judge said the challenge was not properly framed against the plaintiff and the Minister was not a party to that claim. The defendants had made a bare assertion and hoped documents would support it; the court refused the application as a “fishing” expedition.
The plaintiff had earlier sought a preliminary ruling on whether defendants could raise public law issues in the proceedings. It no longer pursued that request, citing the prospect of an appeal and difficulty agreeing the factual basis. The court dismissed that part of its motion. It said the public law questions could not readily be separated from trespass and other claims without agreement among relevant parties, and constitutional issues would be heard only after the other issues were determined.
The judgment did not resolve the underlying claims or counterclaims. It gave directions for discovery and issue lists, leaving the substantive disputes for later determination.