High Court of Ireland Decisions

1. This is an application by the Second, Third and Fourth Defendants seeking an Order by way of determination of a preliminary issue in these proceedings on foot of an Order of Keane J. made 11th December, 1995 as to whether the Plaintiffs' application to the Court pursuant to Section 15(4) of the Minerals Development Act, 1979 should be stayed by virtue of the alleged inordinate and inexcusable delay or alternatively that the Plaintiffs' application constitutes an abuse of process by reason of the delay of the Plaintiff to institute these proceedings. The Points of Claim delivered by the Second, Third and Fourth named Defendants set out the factual basis as follows:-

2. The contents of paragraph 1 to 16 of the Points of Claim are admitted in the Points of Defence, save only that the Plaintiffs plead (Re. paragraph 7) that the reason no appeal was brought at the time was that no rules of Court had been made regulating the right of appeal from decisions of the Second named Defendant to the High Court. The Plaintiffs do not admit the contents of paragraph 17 and plead that no time limit has been imposed by Rules of Court regulating the time period within which an appeal may be taken, that any delay has not been inordinate, nor has it prejudiced the Defendants. The Plaintiffs claim that if there was undue delay (which was denied) it was caused or contributed by the action of the servants or agents of the Second Defendant by reason of lengthy and protected negotiations lasting several years between them and representatives of the Plaintiffs in an effort to arrive at a mutual accommodation.

3. The reliefs sought in the Plenary Summons are for:-

4. At the hearing of this issue the First Defendant appeared to say it abided the Order of the Court and was excused attendance.

5. In his Affidavit Mr. John Pyne, Senior Geologist in the Department of Transport, Energy and Communications and formerly employed by the Geological Survey of Ireland from 1971 to 1992, states that at the trial of the action it would be necessary to establish the exact works and plans of the First Plaintiff in relation to each of the townlands referred to on or about the 15th December, 1978. The Second to Fourth Defendants would be severely prejudiced in their attempt to defend the action and to challenge any evidence which the Plaintiff might lead in relation to the factual situation on or before the 15th December, 1978 by reason of the extreme passage of time. He says the Second to Fourth Defendants do not have any record of the Plaintiff's activities at the relevant townlands for the period prior to the 15th December, 1978. A key witness on whom the Plaintiff would have relied at the hearing of an appeal would have been Michael O'Meara, a key person in the Geological Survey from the 1960's until his retirement in 1984. He was familiar with the involvement of the Plaintiffs in the Leinster coal field and would have been in a position to challenge or verify any evidence the Plaintiff might lead regarding its activities. He died in 1986 and his detailed expert first hand knowledge of the Leinster coal field and the Plaintiff's activities died with him. Mr. Pyne says it is not possible to duplicate Mr. O'Meara's evidence from any files or records or maps or other documentation which may exist. A qualified geologist would not be able to use existing documentation to replicate the evidence Mr. O'Meara could have given.

6. He says the Plaintiffs' case would require a complete rehearing of the matters which came before the Mining Board in the early 1980's. The Defendants do not know what information the Plaintiffs intend to adduce. Without the evidence of Mr. O'Meara the Defendants are deprived of a crucial witness without whom the case could not be successfully defended.

7. In reply Denis Murphy, the Director and Secretary of the First Plaintiff, says he has been an executive with the Company since the year 1959 when works commenced at the Leinster coal field. He agrees it will be necessary to establish the exact works and plans of the First Plaintiff in relation to each townland. He says full details of the works and plans with a schedule of the workings, maps and title documents were at various times between 1980 and 1982 furnished to the First Defendant and he believes they exist as a matter of record. Copies of the records are retained by the Plaintiff and their Solicitors. All boreholes and geological data relating to many thousands of boreholes excavated by the First Plaintiff since 1959 with relevant maps, plans, sections, photographs are retained by the Plaintiffs in the form of written records, reference maps and index computerised data at the Plaintiffs' offices and their Solicitors.

8. Regarding mining carried on or before 15th December, 1978, physical evidence such as disused mines, restored lands, repositories of coal, fire clay and shale awaiting further mining are apparent to the naked eye and are referenced in the material furnished to the First Defendant. He says all the evidence available to the First Defendant in respect of its original determination is available in its entirety and is preserved by them. While he says he has no reason to believe the evidence would be any different to that available originally to the Mining Board, he says the Plaintiffs still hold additional relevant documentation upon which the application was based and will be in a position to make it available to the Court if required.

9. He says much of the commercial borehole data obtained by the Plaintiff Company was made available to Mr. O'Meara and says the data was retained by the Geological Survey as a matter of public record. He claims that the determination on the matters at issue is not dependant on any probative manner on evidence given by Mr. O'Meara other than by way of confirmation or otherwise of statistical data currently available. He claims the Defendants are not in a position to establish any inherent prejudice in relation to the question whether the Plaintiff was carrying on certain works on or before the 15th December, 1978. He says this can be determined by objective evidence (documents, plans, maps, work in progress, physical evidence, books of account) does not need special scientific or geological knowledge or qualifications.

10. The 1979 Act provides:-

11. The Supreme Court has summarised the principles of law relevant to the consideration of issues where there has been inordinate and inexcusable delay in prosecuting a claim. In the case of Primor Plc. -v- Stokes Kennedy Crowley and Primor Plc. -v- Oliver Freeney & Company where the Plenary Summons in both cases issued on 21st December, 1984 and the Statement of Claim on 8th January, 1986, an application to dismiss the claim for want of prosecution in the Stokes Kennedy Crowley case issued on the 30th March, 1993. The application was allowed by the Master, disallowed on appeal by the High Court and allowed by the Supreme Court. In the Oliver Freeney case an application to dismiss for want of prosecution was brought on the 16th June, 1993, refused by the High Court and allowed by the Supreme Court. Hamilton C.J. says at page 24 of the unreported judgment (19th December, 1995) as follows:-

12. It appears to me that these are the appropriate principles to apply in this case even though it differs from the Primor cases in that the proceedings were not issued until ten and a half years after the cause of action arose. The first issue I have to decide is whether the delay was inordinate. In my view the passage of time is such that the delay can indeed be described as inordinate. The next issue is whether the delay is inexcusable. The reason proffered by the Plaintiffs why no appeal was brought at the time, was that no Rules of Court had been made regulating the right of appeal. This is not in my opinion a valid excuse. The Plaintiffs could have brought an appeal at any time (as they did ultimately) by way of Plenary Summons. The absence of Rules of Court did not deprive the Plaintiffs of a remedy.

13. The Plaintiffs also plead that if there was undue delay it was caused or contributed by reason of lengthy and protracted negotiations lasting several years in an attempt to arrive at mutual accommodation. But on the admitted facts the Plaintiffs were informed on 27th May, 1985 that the minerals in question were vested in the Minister and it would be necessary to apply for a State mining licence. This was reiterated on 15th November, 1985 and negotiations took place with a view to granting mining leases. The matter was never resolved and negotiations were terminated. Further that the Minister granted prospecting licences to other parties over some of the areas involved. These agreed facts are consistent with the Plaintiffs negotiating with the Minister for mining leases, which would not have been necessary if the minerals were "excepted" under Section 14.

14. In my opinion the delay was inexcusable. I must then exercise judgment on whether, in my discretion, on the facts, the balance of justice is in favour of or against the proceeding of the case.

15. This is not a case in which the Defendants can be blamed for not moving to dismiss a claim for want of prosecution. There was no appeal in being until 1994 against which the Defendants could have moved to strike out for want of prosecution. I have already dealt with the negotiations between the parties. These did not furnish an excuse to the Plaintiffs. Neither can they be seen as acquiescence on the part of the Defendants. I repeat that negotiations for the granting of mining leases was not compatible with the Plaintiffs' claim to be entitled to have the minerals excepted under Section 14. This is not a case in which conduct by the Defendants has induced the Plaintiffs to delay initiating the proceedings or to incur further expense in pursuing the action.

16. As to the question whether the delay which has occurred gives rise to a substantial risk that it is not possible to have a fair trial or is likely to cause or have caused serious prejudice to the Defendants, I accept that in any appeal today the evidence adduced by the Plaintiffs would have to be challenged by witnesses as to the factual circumstances of the lands at the relevant time. The Plaintiffs say they have material other than that furnished to the Mining Board in the original application. According to the particulars the Plaintiffs place reliance on several hundred boreholes allegedly drilled between October 1959 and December 1986. The Plaintiffs submit that the evidence presented to the Mining Board (which in fact it found inadequate) was essentially documentary and claims that whether the Plaintiffs were working or developing mines or minerals can readily be determined by reference to objective documentary evidence and is not contingent on the availability of a particular expert witness.

17. Since documents do not prove themselves, the Plaintiffs will have to produce oral evidence. The 1979 Act requires proof that mines were being worked on a particular day or that a particular intention existed when the Act was passed.

18. I can foresee unfairness for the Defendants in not being able to find a witness after all this time to challenge allegations by the Plaintiffs in relation to a state of facts existing on the ground in December 1978. I do not see how the Defendants could verify with any degree of accuracy a state of affairs alleged to exist on 15th December, 1978 and to establish with any precision when any mining activities alleged to have been carried out were in fact carried out. In my opinion this places an inexcusable and unfair burden on the Defendants.

19. In addition there is prejudice created by the fact that a number of prospecting licences were granted by the Minister over areas which were the subject of the First Plaintiff's application of 1980 to the First Defendant.

20. The question of being statute barred does not arise.

21. In my opinion this is an appropriate case in which the Plaintiffs' claim should be dismissed in the interest of justice.