The High Court has ruled that six defendants in proceedings brought by Shell E & P Ireland Limited are not barred by time from pursuing their pleaded public law challenges to a pipeline consent and compulsory acquisition orders linked to the Corrib Gas Field project.
In a judgment delivered on 4 March 2010, Miss Justice Laffoy considered a preliminary issue raised by the State parties: whether the defendants had brought their challenges too late under Order 84, rule 21, which governs the time for seeking judicial review. The plaintiff supported the State parties’ application. The court heard affidavit evidence from each defendant.
The consent was granted by the Minister on 15 April 2002 for construction and operation of offshore and onshore pipelines. Compulsory acquisition orders affecting ten plots were made in May and June 2002. Shell later relied on those instruments in proceedings alleging that defendants had obstructed or interfered with its entry onto land and its works. The plaintiff discontinued its claims in 2007, but the defendants’ counterclaim and the inquiry into damages under an undertaking given by the plaintiff remained.
The defendants’ pleaded case challenged the validity of the consent and orders, and also challenged the constitutionality of sections 32 and 40 of the Gas Act 1976, as amended. The court distinguished claims which, though framed as declarations, would have the effect of quashing the instruments from the separate constitutional challenge to the legislation.
The judge held that Order 84, rule 21 did not apply by analogy to the challenges in this case. They had first been raised as a defence to a private law claim brought by Shell, which relied on the instruments to justify its conduct. In those circumstances, the defendants could contest the legal basis for that conduct and pursue remedies through their counterclaim. The judge also found the constitutional grounds pleaded were not merely collateral attacks on the ministerial decisions and remained arguable grounds for challenging the legislation, subject to the defendants establishing standing later.
The court made an alternative finding: if the judicial review time limit did apply, the defendants had not shown good reason for an extension. That finding did not determine the outcome because the judge’s primary conclusion was that the time limit did not apply by analogy.
The judgment did not decide whether the consent or orders were valid, whether the legislation was unconstitutional, whether the defendants had standing, or the merits of the counterclaim and damages inquiry. The judge proposed, subject to any submissions from the parties, an order that the defendants were not barred on time grounds from pursuing any allegations or reliefs in their points of claim in the public law issues module.