BARRINGTON J:
1. On the 22 March, 1994, Mr Justice Carney made an order in this case
giving leave to serve notice of the Plenary Summons herein on the third
named defendants, B. N. F. plc, out of the jurisdiction at the registered
office of the said defendant at Risley, Warrington, Cheshire, England. B.
N. F. entered a qualified appearance to the said Summons for the purpose
only of contesting the validity of the order which had been made giving
leave to serve out of the jurisdiction and also the validity of the service of
the proceedings.
By his Order dated the 30 day of March, 1995, Mr Justice O'Hanlon
refused to set aside the order of Mr Justice Carney dated the 22 day of
March, 1994 but set aside the service of the Plenary Summons on B. N.
F. plc, directed that the said Plenary Summons be renewed for a further
period of six months from the date of his Order and ordered that Notice
of the said Summons together with a copy of the Order of the 22 March
1994 be served on the said B. N. F. plc.
The Plaintiffs and the said B. N. F. plc appealed and cross-appealed
against the said Order of Justice O'Hanlon. Insofar as the grounds of their
appeal and cross-appeal were based on alleged non-compliance with the
Rules of the Superior Courts these grounds of appeal and cross-appeal
were abandoned at the hearing before this Court. The only matter to be
decided by this Court therefore is whether Mr Justice O'Hanlon was right
in refusing to discharge the said Order of Mr Justice Carney dated the 22
March 1994.
THE PLAINTIFFS' CLAIM
The Plaintiffs' all live in the County of Louth and all claim to be citizens
of Ireland and of the European Union. They bring this case on their own
behalf and on behalf of their families and the "unborn"within the meaning
of the Irish Constitution.
The third named defendant, and the applicant in the Motion, is B. N.
F. plc which is a limited company, registered in England, the shares
of which are held by or on behalf of the United Kingdom through its
Secretaries of State. B. N. F. plc was established to fulfil the purposes of
the United Kingdom's Atomic Energy Act 1971 and, inter alia, to facilitate
the commercial development of nuclear fuel. Its' place of business is at
Selafield in Cumbria, where it is holder of a site licence under the United
Kingdom Nuclear Installations Act, 1965. It presently carries on business
involving nuclear reactors including the reprocessing of spent nuclear
fuels at the said site.
In the late 1960s' B. N. F. decided to establish at the said site a thermal
oxide reprocessing plant (hereinafter called Thorp) designed to reprocess
spent Oxide fuel from nuclear reactors from Great Britain and from
overseas.
B. N. F. applied for, and after a public enquiry, obtained, in May 1978,
outline planning permission for the said project. Full planning permission
followed in 1983. Construction work began and the building of Thorp was
completed in February 1992.
The Plaintiffs' all reside on the East coast of Ireland opposite Selafield
and claim to be adversely affected by B. N. F. operations. The Plaintiffs'
claim moreover that B. N. F., before carrying out the said Thorp project,
should have carried out an environmental impact assessment as required
by Council directive 85/337 EEC but failed to do so. They claim moreover
that B. N. F. is in breach of its' obligations under EC Council Directive
80/836 (the Euratom directive) as amended by 84/467 and failed to
provide adequate or satisfactory information to the public, including the
Plaintiffs, establishing that the gains to be derived from the operation of
Thorp exceeded the risks and disadvantages which accompanied such
operation.
The Plaintiffs' claim that the gaseous and liquid discharges from the B.
N. F.s' site at Selafield have already caused considerable personal health
and environmental damage and economic loss in the general area where
the Plaintiffs live. They claim that increased radioactive contamination
arising from the Thorp project will eventually result in the death of an
estimated 2,000 people arising out of the first ten years of the operation
of Thorp. They claim that the Plaintiffs and other Irish people are and will
be included among the people who will die or are at risk of dying as a
result of the Thorp operation.
The Plaintiffs claim that the operation of the Thorp project involves a
significant risk of serious accidents which could involve incalculable harm
to civilians and property. They say that the commissioning and operation
of the Thorp project constitutes in itself a source of mental distress and
psychiatric injury to the Plaintiffs and to their families especially having
regard to the absence of the environmental assessment required by
Directive 85/337 and/or the justification required by Directive 80/836 and
having regard to the conduct of B. N. F. in relation to the Selafield site.
As a result the Plaintiffs and their families allege that they will be caused
to suffer and to continue to suffer mental distress, psychiatric injury,
damage and/or increased risk of damage to their personal health,
interference with their enjoyment of the natural environment and
economic loss and they allege that in due course the unborn will suffer in
the same way.
The Plaintiffs' claim against B. N. F.:-
(i) Declarations that the Nuclear Fuel reprocessing activities which the
said Defendant is beginning to carry out at its' site at Selafield, Cumbria,
namely the Thorp project, are being or are about to be conducted in
contravention of:-
(a) Council directive 85/337 of the 27 June 1985 by reason of the non-
existence of an environmental impact assessment as to their effects as
required by the said directive.
(b) Council directive 80/836 Euratom, as amended, by reason of the
lack of justification within the meaning of the said directive prior to the
purported authorisations of liquid air or other discharges from the said
Thorp installation and project.
(c) The precautionary principle and/or the principle that preventative
action should be taken, contrary to Article 13R of the Treaty of European
Union.
(d) Customary International Law.
II. Such further or other declarations as to this Court sees fit.
III Injunctions restraining the said Defendant from:-
(a) Carrying on its' reprocessing activities until the said directives have
been fully complied with.
(b) Discharging radioactive substances from the said Thorp Installation
and Project into/or over the Irish Sea.
(c) Contaminating with radioactive substances the sea, seabed, seashore
and the areas and the jurisdiction of the state contiguous to the seashore
and adjacent to the residences and lands of the Plaintiffs.
(d) Breaking the precautionary principle and the principle that
preventative action should be taken contrary to Article 13R of the Treaty
of European Union.
(e) Breaching generally accepted principles of international customary
law.
(f) Such other injunctions as to the Court may see fit.
IV. Damages and/or compensation and/or restitution to include exemplary
and/or aggravated damages for:-
(a) Assault.
(b) Nuisance to the Plaintiffs' property and to the Plaintiffs.
(c) Trespass to the Plaintiffs' property and to the Plaintiffs.
(d) Negligence.
(e) Wrongful infliction of mental distress on the Plaintiffs'.
(f) Wrongful invasion of/or interference with the Plaintiffs' natural
environment.
(g) Breach of the precautionary principle and/or the principle that
preventative action should be taken as regards the environment rather
than action contaminating same contrary to
Article 13R of the Treaty of European Union.
(h) Exposing the Plaintiffs' to unnecessary and/or unreasonable risks.
(i) Breach of established principles of customary international law.
(j) Breach and/or invasion of the Plaintiffs' rights under the Constitution of
Ireland.
(k) Breach and/or invasion of the Plaintiffs' rights under the Treaty of
European Union.
EXPERT OPINION
The Plaintiffs' application for service out of the jurisdiction was supported
by Affidavits from two experts. The first was Mr John Henry L., Chartered
Engineer, who described the processes involved in the Thorp project
in considerable detail and gave it as his professional opinion that the
operation was likely to cause grave longterm detriment to the Plaintiffs
and others inhabiting the East coast of Ireland. The second was Dr
Mary G., a Medical Practitioner in the Louth area, who had carried out
an extensive study of physical abnormalities detected over a period of
years in patients in the locality in which she practised and who gave
as her opinion, as a result of her research, that a likely cause of such
abnormalities was the operation of the Selafield plant in Cumbria.
It would be unreal to assume that these allegations will not be fiercely
contested at the hearing of the Action, if there is one, but nevertheless
it appears to me that Mr Justice O'Hanlon was right in holding that the
Plaintiffs' had established a "good arguable case" for the purposes of an
application for service out of the jurisdiction under Order 11 of the Rules
of the Superior Courts.
ORDER 11
The Plaintiffs' claim is clearly a many facetted one but nevertheless it is
clear that the basic claim is in the nature of a Tort or Quia Timet Action.
Order 11 permits service out of the jurisdiction of Notice of an Originating
Summons on a person who is not a citizen of Ireland where:-
(b) the Action is founded on a Tort committed within the jurisdiction; or --
(g) any injunction is sought as to anything to be done within the
jurisdiction, or any nuisance within the jurisdiction is sought to be
prevented or removed whether damages are or are not also sought in
respect thereof . . ."
Whether the terms of sub-paragraphs (f) and (g) above are wide enough
to include actions for relief arising out of alleged breach of constitutional
rights or alleged breach of European Directives or whether the distinction
is of any importance in the circumstances of this case, are matters which,
I think, could properly be left to the trial of the Action.
The Plaintiffs' claim against the first two Defendants (Ireland and the
Attorney General) is that they did not take such Action as was open to
them to protect the personal rights of the Plaintiffs against the alleged
attack being made on them by B. N. F. Ltd. Order 11 Rule 1 paragraph (h)
permits service out of the jurisdiction where:-
"Any person out of the jurisdiction is a necessary or proper party to an
Action properly brought against some other person duly served within the
jurisdiction".
The standard test to be applied in exercising this jurisdiction is whether
the person out of the jurisdiction would, if he were within the jurisdiction,
be a proper person to be joined as a Defendant in the Action against the
other Defendants. One can have no doubt that if B. N. F. were resident
within this jurisdiction it would be a proper Defendant in the present case.
Therefore it appears to me that Mrs Justice O'Hanlon was right in allowing
service out the jurisdiction under this head also.
Finally Mr Justice O'Hanlon held that the balance of convenience lay in
favour of trying the case in the Irish Courts and, subject to what is said
below, there was no serious challenge to his decision on this specific
point.
It will therefore appear that if we are to regard the claim as being
essentially a Tort or Quia Timet Action the case for service out of the
jurisdiction under Order 11 has been made out.
The Brussels Convention.
The Brussels Convention of 1968 was adopted in accordance with the
provisions of Article 220 of the EEC Treaty which encouraged member
States of the European Economic Union to enter into negotiations with
a view to securing for the benefit of their Nationals the simplification
of formalities governing the reciprocal recognition and enforcement of
Judgments in the European Community. It deals with disputes concerning
"civil and commercial matters". The present dispute is clearly not a
commercial dispute. It concerns an alleged Tort Delict or civil wrong.
Whether the scope of the convention is wide enough to include Actions
for damages for alleged breach of constitutional rights or alleged breach
of a directive, or whether the distinction is of any importance in the
circumstances of the present case, are matters for further discussion. Two
matters do however appear clear. It is possible to invoke the convention
to institute proceedings in the national jurisdiction where the effect of the
alleged wrongful Act is felt. Secondly it would not appear to be possible to
invoke the convention in an Administrative Law Action. It may be possible
to invoke the convention where the Action is essentially based on some
civil wrong but also contains some minor elements of administrative law.
Under these circumstances the Plaintiffs' Legal Advisers deliberately chose
not to invoke Article 11(a) of the Rules of the Superior Courts, which
allows a Plaintiff to institute proceedings without the prior leave of the
Court where he seeks to rely upon the convention, but to apply for leave
under Article 11 in accordance with the traditional procedure for applying
for service out of the jurisdiction. Under these circumstances it does not
appear necessary to discuss the Brussels Convention any further at this
stage.
JURISDICTION
The main point raised by B. N. F. in this Motion is that the Irish Courts
have no jurisdiction to deal with the Plaintiffs' complaints or, if they have,
the Irish Courts should, in all the circumstances of the case, decline
jurisdiction, in respect of some, if not all, of the Plaintiffs' complaints.
B. N. F. say that they have complied with all the appropriate procedures in
the United Kingdom. They have gone through a public inquiry, they have
obtained the necessary licences authorisations and permissions under the
law of the United Kingdom. They have successfully resisted a challenge to
their activities in the Queens Bench Division in England.
In these circumstances they say that for the Irish Courts to entertain
the present case would be, in effect, to interfere with the decisions of a
neighbouring sovereign power, to embark on judicial review of decisions
made by the competent authority in another State and to fail to respect
the decision of the English High Court made within its own jurisdiction.
JURISDICTION OF NATIONAL COURT Mr Paul Callan SC, on behalf of the
Plaintiffs', denies that he is attempting to interfere, in any way, with the
jurisdiction or competence of the Courts or the Government of the United
Kingdom.
Let us look at the matter first as a question of National Law leaving
aside any question of European Law. It may be true that the activities
of which the Plaintiffs complain take place in the United Kingdom. But
what gives the Plaintiffs' a cause of action, if they have one, is not the
activities as such but the allegedly harmful results of these activities
in Ireland in the area where the Plaintiffs' reside. It is these allegedly
harmful results which give the Irish Courts jurisdiction to deal with the
complaints, and, if they find the complaints established, to attempt to
give the Plaintiffs' relief, without trespassing on the jurisdiction of the
Courts of any neighbouring State. Prima facie the matter would appear
to be simply a matter of National Law; the Plaintiffs' would appear to be
entitled to bring their claim; and the Irish Courts would appear to have
jurisdiction to entertain it.
EUROPEAN LAW
The case may of course develop in a much more complicated way. Prima
facie it is difficult to see how any provision of English Law could make
legal in Ireland injury or damage which would otherwise be tortious under
Irish Law. Certainly it is hard to see how any provision of UK Law could
deprive the Irish Courts of jurisdiction which they would otherwise have.
Prima facie the relevant law would appear to be the lex loci delicti rather
than the law of the United Kingdom.
If however B. N. F. were to attempt to justify the effects in Ireland of it's
activities in England by reference to the law of the United Kingdom the
Plaintiffs' say that they would then invoke the alleged non-compliance by
B. N. F. with the European directives pleaded to attack any administrative
authorisations which B. N. F. may have received for the Thorp project.
Inevitably there is an element of shadow boxing in this which is one
reason why the matter is best left to the trial Judge.
If however the case comes to be discussed as a case governed by
European Law very different considerations may apply. First the
outstanding characteristic of the European Community is that it is a
community governed by law. It is debatable to what extent the old
system of national sovereignty which was reflected in many of the cases
relied upon by B. N. F. in the hearing of this Motion, applies between
two States both of whom are members of the Community. Certainly in
the sphere in which the Community Legislator has acted Community
Law is supreme and the National Law of the member States must give
way to it. Again there is within the European Community no hierarchal
structure of Federal Courts to which the citizen can appeal to resolve
conflicts between European and National Law. Every National Court
within the Community is a European Court and must give primacy to
European Law over National Lab where there is a clash between the
two. The National Court may look to the European Court of Justice for
guidance but the ultimate responsibility for enforcing European Law rests
with the National Court before which the problem arises. This could have
serious consequences in the event of B. N. F. seeking to rely on a British
administrative authorisation and the Plaintiffs' attempting to argue that
the authorisation was invalid for non-compliance with European directives.
Finally we are told that a question will arise in the case as to the nature of
B. N. F. plc. In form it is a Company incorporated under English Company
Law and, in no stronger or no weaker a position than any other person
alleged to have committed or to be committing a Tort. At the same time
all the shares in the Company are held by or on behalf of the United
Kingdom through Secretaries of State. It was established for the purposes
of the United Kingdoms Atomic Energy Act 1971 and is the holder of a
site licence under the United Kingdom Nuclear Installations Act, 1965.
The Plaintiffs say that it is in effect a State Authority or what community
Lawyers refer to as an "emanation of the State". B. N. F. denies that this
is so. This is one of the matters which may have to be decided at the trial
of the Action. It cannot therefore go to the question of whether the Irish
Courts have jurisdiction to deal with the matter or not. However it may
have far reaching effects on the case in that it may raise the question of
whether the Plaintiffs' can invoke the doctrine of "direct effect" against B.
N. F..
CONCLUSION
From the foregoing discussion it is clear that the present case raises, or
may raise, difficult questions of far ranging significance. Certainly the
questions are too complex and difficult to be disposed of, in limine, on a
Motion to dismiss for want of jurisdiction. Rather should they be left to
the trial Judge to decide after full debate. I should not like anything said
by me on this preliminary issue to inhibit the trial Judge in any way in his
approach to the case.
Again the relief, if any, to which the Plaintiffs may be entitled and the
form of such relief are matters for the trial Judge after he has heard the
case.
Under these circumstances I would dismiss the Appeal on the Motion and
confirm the Order of O'Hanlon J