HC 167/04
THE  HIGH  COURT
Record Number: 1994 No. 1751P

Between:
		
Constance Short, Mary Kavanagh, Mark Deary and Olann Herr

Plaintiffs
And

Ireland, The Attorney General and British Nuclear Fuels Plc.

Defendants

Judgment of Mr Justice Michael Peart delivered the 2nd. day of April 2004:

The plaintiffs are residents of County Louth who commenced proceedings in 1994 in which they seek as against the first and second defendants certain declaratory reliefs, as well as damages under a number of headings. 

As against the third named defendant (“BNFL”) the plaintiffs seek certain other declaratory reliefs, as well as injunctive reliefs. The declarations sought as against BNFL are set out on page 17 of the Statement of Claim as follows:

“ i.  Declarations that the nuclear fuel reprocessing activities which the said defendant is beginning to carry out at its site at Sellafield, Cumbria, namely the THORP project, are being or about to be conducted in contravention of:

A.	Council Directive 85/337 of 27th 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 authorizations of liquid air or other discharges from the said THORP installation and project.

C. The Precautionary Principle and/or the Principle that Preventive Action should be taken, contrary to Article 130R of the Treaty of European Union.

D.	Customary International Law.

ii.  Such further or other declarations as to this Court seems fit.”

In the event that these declarations are granted, the plaintiffs then seek certain injunctive reliefs which, if granted, would restrain BNFL  from carrying on its nuclear reprocessing activities at Sellafield, Cumbria, England, including discharging radioactive substances into the Irish Sea and contaminating with those substances the sea, seabed, seashore, and the areas in the jurisdiction of this State contiguous to the seashore and adjacent to the residences and lands of the plaintiffs, until such time as the Directives in question have been complied with. 

These can be conveniently referred to as “the regulatory claims”. 

In addition the plaintiffs claim damages against BNFL under a number of headings, such as assault, nuisance, trespass, negligence and so on. These latter claims can be referred to together as “the tort claims”.

President’s Ruling as to Issues:

In his judgment delivered on the 13th February 2003, the President of the High Court found that the Statement of Claim delivered by the plaintiffs discloses two separate and distinct actions, one against the first and second defendants, and another against BNFL, and that the action as against the first and second defendants could be disposed of without the participation of BNFL, and that the action against BNFL could be disposed of without the participation of the first and second named defendants. The learned President then identified a number of issues in respect of each action which could be conveniently determined in advance of the main hearing. In respect of the claims against BNFL he identified a number of issues and directed that they be dealt with in two segments. I am concerned only with those issues which form the first such segment and which he set out as follows:

1.	Does the Court have jurisdiction to determine and declare that THORP should have been subject to an environmental impact assessment within the meaning of EC Council Directive 85/337 (as amended) and/or that it should have been subject to a “justification procedure” as provided by Euratom Directives 80/836 and 84/467 (as amended).

2.	Has the Court jurisdiction to grant a mandatory injunction compelling the third named defendant to comply with the said directives.

3.	What is the applicable law by reference to which the plaintiffs’ claims are to be determined.

4.	If the Court has jurisdiction in respect of the plaintiffs’ claims against the third named defendant should the court in all the circumstances decline such jurisdiction or stay the proceedings on the grounds of ‘forum conveniens’.

Background facts:
The plaintiffs’ Statement of Claim describes the background to the plaintiffs’ claims.
BNFL is a limited liability company registered in England, the shares in which are held by or on behalf of the United Kingdom by its Secretaries of State. The company was incorporated in order to fulfil the purposes of the United Kingdom’s Atomic Energy Authority Act, 1971, and, inter alia, to facilitate the commercial development of nuclear fuel. Its place of business is at Sellafield in Cumbria where it is the holder of a site licence under the United Kingdom’s Nuclear Installations Act, 1965. It presently carries on business involving nuclear reactors including the reprocessing of spent nuclear fuels at the site. In the late 1960s BNFL decided to establish at the site a Thermal Oxide Reprocessing Plant (“THORP”) which was designed to re-process spent oxide fuel from nuclear reactors in Great Britain and from overseas, and between 1971 and 1977 BNFL sought planning permission for THORP. Outline Planning Permission was granted in 1978, followed by full Planning Permission in 1983. The building of THORP was completed in 1992. For the purpose of carrying out its operations, BNFL applied in April 1992 for certain new authorizations to discharge radioactive wastes from the Sellafield site into the Irish Sea and into the atmosphere. Draft authorizations were made available for public consultation in November 1992, and this consultation process lasted for ten weeks. Further consultations took place to consider some issues which had not been considered already, such as the justification for the new plant and proposed emissions of radioactivity in terms of overall benefit, and the non-proliferation implications of an increasing stockpile of plutonium. The relevant British Government Ministers eventually granted the new authorizations in December 1993 pursuant to sections 13 and 16 of the Radioactive Substances Act 1993, which permit discharge of radioactive liquid and gaseous material subject to specified restrictions as to quantity and type.

The plaintiffs claim that these discharges have already and will continue to cause considerable personal health and environmental damage and economic loss in the area where they live, and that they as well as other Irish people are among those who can expect to die as a result of the THORP operation. They also say that the commissioning and operation of the THORP plant constitutes in itself a source of mental and psychiatric injury to the plaintiffs and to their families, especially having regard to the absence of the environmental impact assessment required by Directive 85/337, and/or the justification required by Directive 80/836, and having regard to the conduct of BNFL in relation to the site at Sellafield.

It is against this background that this court must decide the issues set forth by the president of the High Court for determination.

Does the Court have jurisdiction to determine and declare that THORP should have been subject to an environmental impact assessment within the meaning of EC Council Directive 85/337 (as amended) and/or that it should have been subject to a “justification procedure” as provided by Euratom Directives 80/836 and 84/467 (as amended)?
Res Judicata?:

The plaintiffs submit that it has already been determined both in the High Court and on appeal by the Supreme Court, at an earlier stage of these proceedings, that this court has jurisdiction in relation to the regulatory claims as well as the tort claims, and that the matter is therefore res judicata. 

This submission refers to the fact that on the 22nd March 1994, being the day following the issue of the Plenary Summons in this case, the plaintiffs applied to Carney J. under Order 11 of the Rules of the Superior Courts (“the Rules” or “RSC”) for an order giving liberty to serve notice of the said Summons on BNFL at its registered office in England, and that following the making of that order and following service of the proceedings on BNFL, an application was made by BNFL by way of Notice of Motion seeking to have that order set aside on the basis that leave to serve outside the jurisdiction ought not to have been granted, since the claims, insofar as they were claims in tort, came within the terms of Order 11A of the Rules, they being claims within the terms of the Convention on Jurisdiction of Courts and Enforcement of Judgments in Civil and Commercial matters, 1968 (“the Convention”), and insofar as they are claims relating to a challenge to the administrative decisions of a foreign jurisdiction, they are claims in respect over which the Irish Courts have no jurisdiction. 

The judgments of the High Court and Supreme Court are reported in [1996] 2 I.R. 188.  In the High Court, the late Mr Justice O’Hanlon proceeded upon an examination of what the plaintiffs’ claim consisted of, and concluded that in his opinion the plaintiffs’ claim is in the nature of a quia timet action to restrain the commission of the tort of negligence and the tort of nuisance by BNFL in the commissioning and operation of the THORP project, and for damages in respect of such actions and activities. He went on to say at page 200:

“…While much is made of the alleged failure on the part of the said defendant to comply with the requirements of Council Directive 80/836/Euratom, art. 6(a), as replaced by art.2 of Council Directive 84/467/Euratom, requiring prior justification of  the THORP Project before it cold be put into operation, and Council Directive 85/337/EEC of the 27th June 1985, on the assessment of certain public and private projects on the environment, I am of opinion that, in reality, they are being called in  aid of an overall claim based on threatened negligence and nuisance.”

But he also concluded that it would not have been appropriate for the plaintiff to have proceeded under Order 11A, RSC on account of the fact that some of the reliefs claimed in the proceedings did not come within the scope of that Order, which was a new Order to give effect to the provisions of the Convention. He felt that the declaratory reliefs being claimed as against BNFL were outside the scope of the Convention, and he adverted to a submission on the plaintiffs’ behalf that since they were, inter alia, seeking to enforce directly the provisions of the Council Directives against BNFL, that could be regarded as an administrative matter and as such beyond the scope of the Convention, and therefore Order 11A, RSC. He also concluded that the scope of the Convention was sufficient to embrace a quia timet type tort claim, in addition to a claim in respect of a tort already committed.

O’Hanlon J. also concluded that the link between the claims being brought against the first and second defendants, and the claims against BNFL were sufficiently closely linked to bring BNFL within the concept of “a necessary and proper party to a claim brought against a person duly served within the jurisdiction.” for the purposes of O. 11, r. 1 (h), RSC.

Regarding the question of whether the plaintiffs could invoke the terms of the Council Directives and argue that BNFL were in breach of them, O’Hanlon J. was of the view that he ought not to make a positive finding at that stage of the proceedings, and stated at page 208:

 “It appears to me to be a matter best left over for further consideration if the matter should proceed to plenary hearing.”

In the Supreme Court, Barrington J. giving the judgment of the Court stated in this regard:

“Whether the terms of sub-paras. (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.”

He also stated at page 216:

“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 O. 11 has been made out.”

In a section of his judgment commencing under the heading “European Law” at page 218, Barrington J. discusses the possible ways in which this case might develop, and how the question of the Irish Courts’ jurisdiction might be affected in different scenarios. For example, he posits a situation where BNFL might, in answer to the plaintiffs’ claims, seek to justify their activities by reference to the law of the United Kingdom (and presumably rely upon the authorizations obtained in 1993) and that the plaintiffs might then seek to attack those authorizations on the basis that in the process of obtaining them BNFL had failed to comply with the Council Directives as regards an environmental impact assessment and justification. He also considers other possible scenarios, depending on how the case developed. It is clear from this judgment that at that point in time it was perceived that there was some doubt as to exactly what the nature of the plaintiffs’ claim was going to be. But both O’Hanlon J. and Barrington J. were of the view at the time of this application that the claim was principally a tort claim or quia timet action, rather than a claim primarily based upon a challenge to the authorizations themselves, being an administrative or judicial review type challenge. Whatever the true nature of the claims, Barrington J. stated at page 219 of his judgment that:

“…the questions are “too complex and difficult to be disposed of, in limine, on a motion to dismiss for want of jurisdiction. Rather they should 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.”

 Noticeably absent from the judgments of either O’Hanlon J. in the High Court, or Barrington J. in the Supreme Court, is any reference to the possible effect of the decision of Potts J. in the Queens Bench Division in R v. Secretary of State for the Environment and others, ex parte Greenpeace Limited and another [1994] 4 All ER 352, (“the Greenpeace decision”) with the exception of a reference thereto by O’Hanlon J. in the context of a submission by BNFL that the plaintiffs in their ex parte application to Carney J. had lacked ‘uberrima fides’ by failing to make full disclosure of that decision to him. That decision had been delivered some 17 days prior to the application to Carney J. I do not need to refer to that aspect of the case before O’Hanlon J., but the fact that the decision was not referred to in any other context either before O’Hanlon J. or before the Supreme Court certainly indicates that those courts were not addressing the claims of the plaintiffs on the basis that they were primarily, or even secondarily perhaps, claims by way of a challenge to the legality of the authorizations which were granted to BNFL in December 1993. The judgments treat the claims as being claims in tort. Nevertheless the courts decided that procedure under the Convention and Order 11A of the Rules was not obliged or perhaps possible because other aspects of the plaintiffs’ claims brought the proceedings outside the terms of the Convention procedures. But it cannot in my view be stated, arising out of these judgments, that the reason why the Court found that procedure under Order 11A was not appropriate, and that an order under Order 11 RSC was appropriate, was because the Court was accepting that the Irish Court had jurisdiction to make declarations as to the illegality or invalidity of British administrative decisions. They appear to have quite deliberately refrained from so deciding, preferring to leave that question to the court of trial.

Dr Forde, on behalf of the plaintiffs has contended first of all, in connection with this question of jurisdiction, that it has already been decided, by virtue of the decision of Barrington J. to which I have just referred, that the Court has jurisdiction to declare that the THORP project should have been subject to an environmental impact assessment and justification under the two Council Directives referred to. He makes this submission on the basis of what was actually argued before Carney J, as well as before O’Hanlon J. and the Supreme Court, rather than on the basis of what is contained in the latter two judgments arising out of the Notice of Motion to set aside the order of Carney J. 

He refers to the grounding affidavit of Alvin Joseph Shuttleworth, BNFL’s legal director and company secretary which was sworn to ground the application to set aside the order of Carney J. In relation to the contention that the motion was decided on the basis that this is really a tort action, buttressed to an extent by the regulatory claim, Dr Forde says that the way in which the matter was argued before the High Court and the Supreme Court was on the basis that the regulatory claims was a free-standing claim, and not just wrapped up with the tort claim. He says that the legal submissions and the affidavits sworn in relation to the application demonstrate this. Certainly when one looks at the affidavit of Mr Shuttleworth sworn the 22nd April 1994 on behalf of BNFL, it is clear that he treats the regulatory claim as the principal claim and addresses same at some length in paragraphs 11 to 15 under a separate heading entitled “Claims relating to EC Directives”, and that under the heading “Other Claims” he deals, inter alia, with the tort claims, the latter being addressed mainly in terms of the merits of the claim rather than on the question of jurisdiction. The legal submissions of BNFL in written form which were before the Supreme Court certainly lay great emphasis on the challenge to the ability of the Irish Courts to make decisions in relation to administrative decisions in a foreign jurisdiction. These submissions refer to arguments made in the High Court in that regard and in fact utter some criticism of the judgment of O’Hanlon J. in so much as he failed to address consider or decide this aspect of the motion. 

Under a heading entitled “Analysis of the Fundamental Issue”, these submissions refer to the fact that in the High Court it was argued, firstly, that Order 11, RSC does not permit the grant of liberty to serve outside the jurisdiction in respect of the whole or part of the plaintiffs’ claim which was administrative in nature (the regulatory claims), and secondly, that the Irish Courts could not or should not grant liberty to serve outside the jurisdiction in respect of a claim which necessarily involved an Irish court reviewing the legality and validity of the actions of the executive of another state within that state’s territory. 

This submission is followed in BNFL’s submissions to the Supreme Court by a submission under a heading entitled the “Tort Claim”. That submission seems to have been based on a contention that since there was no evidence before the court that any of the plaintiffs had suffered any injury, whether linked to the activities of BNFL or otherwise. But nevertheless BNFL submitted that where there was a tort claim, leave should not have been granted under Order 11, RSC, but rather that the plaintiffs ought to have proceeded to serve the proceedings under the terms of Order 11A, RSC since such a tort claim came within the terms of the Convention. It is submitted in these submissions that the judgment of O’Hanlon is flawed in that it failed to address what they describe as the fundamental issue raised by BNFL (a reference to the issue as to whether the Irish Courts could or should entertain a claim which involved those courts passing judgment on the validity of the authorizations granted by the Secretary of State for the Environment and Minister for Agriculture of the United Kingdom.)

Those submissions also submitted that the learned O’Hanlon J. had been in error in characterising the plaintiffs’ claims as being in the main a quia timet action to restrain the commission of a tort of negligence and nuisance to which the regulatory claims are merely called in aid. It was submitted that if the court was finding that it was a tort claim, then it should have set aside the order made under O.11 RSC on the ground that the claim should proceed under O.11a RSC, being a claim to which the Convention applied, and also that if, as BNFL felt appeared to be the case, the Court was satisfied that at least part of the plaintiffs’ claim was administrative in nature, it ought to have addressed the question as to which, if any, sub-head in O.11 RSC permitted the Court to exercise jurisdiction in respect of such a claim.

Dr Forde submits accordingly that there is no question but that the very issues which have been ventilated before me in this regard are the same issues as were ventilated before O’Hanlon J. in the High Court, and before the Supreme Court on appeal. He says in relation to these judgments saying that certain matters should be left to the trial judge, that the matters in question relate not to whether the Irish Court has jurisdiction over such questions, but rather to whether this is an appropriate case in which to make the declarations and injunction orders sought by the plaintiffs.

Mr Paul Gallagher SC, on behalf of BNFL, has stated that at the time that the application was made to Carney J., and by motion to O’Hanlon J., and then by way of appeal to the Supreme Court, the issues being raised by the plaintiffs were not as clear as they now are with the passage of time. In other words, it was not at that time precisely clear whether the plaintiffs were making a free-standing regulatory claim, above and beyond a tort claim, and Mr Gallagher says that this is why the judgments prefer to leave the final word on jurisdiction to the court of trial. He says that now the issues are clearly crystallised and defined, and that the Court is now for the first time in a position to take a view on this aspect of the claim which relates to the regulatory claim. Dr Forde, of course, has stated that this flies in the face of BNFL’s submissions to the High Court and Supreme Court in which BNFL clearly were of the view that the regulatory claims were free-standing, and were dealt with as such in the submissions, even if they were not viewed that way in the judgments of those courts. Reference has been made to the arguments of the parties which appear in summary form at page 210 of the judgment of Barrington J. in the Supreme Court. Certainly that summary confirms that BNFL argued that the appeal should be narrowed to the issue of whether the regulatory claims are capable of being obtained pursuant to the jurisdiction of the Irish Court. The argument of the plaintiffs was clearly summarised there as being an assertion of rights emerging from the breach of EU Directives, and that such a breach constitutes a tort for which proof of personal injury is not a pre-requisite.

Ultimately the question as to whether the question of jurisdiction is res judicata must be gleaned from the judgments themselves and what the judges actually said, and not simply by reference to what was actually argued before those Courts. It is true that the matter of the jurisdiction of the Irish Courts to adjudicate upon the regulatory claims was argued in both fora, but for whatever reason, and perhaps wisely, the judgments do not directly address that issue, but rather decide the question on the basis that the plaintiffs’ claims are in the main claims in tort. There is the anomaly that, if that be the case, the claims could have proceeded under the Convention rules as provided for in Order 11A,RSC but that is to a large extent academic, since the fact is that we would still be in the position we are in today, regardless of the route taken. But I am satisfied that the wider question of this Court’s jurisdiction in relation to aspects of the plaintiffs’ claims which rely on or are supported by a challenge to the authorizations based on a breach of the requirements of the EU Directives has been left open by the judgments already pronounced. Those courts proceeded on the perhaps convenient basis that the claims were claims in tort or in the nature of quia timet claims, albeit with elements of claims based on administrative law intertwined. I am satisfied that this court is not precluded from re-visiting the issue of jurisdiction in the form in which that question has been asked in the Order of the President of the High Court. Since the decision of the Supreme Court there has been the normal exchange of pleadings, as well as the furnishing of particulars following the delivery by BNFL of a Notice for Particulars. The replies to particulars have filled out in great detail the precise nature of the claims being made by the plaintiffs, both in relation to the tort claims and the regulatory claims. BNFL now submit that it is clear form these particulars that the regulatory claim is a free-standing claim, and not simply one which buttresses the tort claims. Indeed the plaintiffs agree.

Abuse of Process?:
I am also satisfied that it is not an abuse of process on the part of BNFL to have this matter argued and determined by this Court, even though some of the arguments before me may not have been made in the previous fora, and many of them have been so made. Dr Forde has submitted that even if there were matters which were not canvassed before Carney J, O’Hanlon J. and the Supreme Court and which are now canvassed before this Court for the first time, BNFL ought not to be allowed to do so now, on the basis that to do so is an abuse of process, since the opportunity to do so was available to do so earlier, and they did not do so.  I am informed by Dr Forde that when the issues for determined by this court were being debated before the President of the High Court, this point was raised, and that the learned President stated that this would be a matter for this court to deal with. Dr Forde has relied upon the well-known passage from the judgment of Wigram V.C in Henderson v. Henderson [1843] 3 Hare 100, 67 ER 313 wherein the learned Vice Chancellor stated as follows:

	“…I believe I state the rule of Court correctly when I say that where a given matter becomes the subject of litigation in, and adjudication by, a court of competent jurisdiction, the court requires the parties to that litigation to bring forward their whole case and will not (except under special circumstances) permit the same parties to open the same subject of litigation in respect of the matter which might have been brought forward, only as part of the subject in contest, but which was not brought forward, only because they have from negligence, inadvertence or even accident, omitted from part of their case. The plea of res judicata applies, except in special cases, not only to points upon which the court was actually required by the parties to form an opinion and pronounce a judgment, but to every point which properly belonged to the subject of litigation, and which the parties, exercising reasonable diligence, might have brought forward at the time.”

In the present case, I have already expressed myself as satisfied that when the matter was the subject of determination in the Supreme Court, the final determination of the question of jurisdiction was deliberately left over for further argument at the trial, by which time it was expected that all the issues arising for determination would have become clear and would have crystallised. That is what has now happened. The ‘shadow-boxing’ is at an end, and with the delivery of the Statement of Claim and the furnishing of full particulars, the matters in issue are comprehensively set forth, even if, in argument before this court, the precise nature of the argument being advanced by the plaintiffs in relation to the regulatory claims is a little unclear. Dr Forde has said in his submissions that the plaintiffs are not challenging the validity of the authorisations. However, he is nevertheless saying that the process by which the authorisations were granted has not taken account of the procedures required by the EU Directives, and the result is that they claim an entitlement to the declarations and injunctions as sought. He is correct when he says that they are not actually seeking an order quashing the authorisations, but the relief he seeks would require this court to make a finding of invalidity in respect of the authorisations on the basis that the EU Directives were applicable and had not been complied with.

 In any event, I am satisfied that it could not be said that by advancing arguments before this court which were not argued before, BNFL is in some way abusing the process of the court in these circumstances. This case is entirely different from the circumstances in Carroll v. Ryan et al, unreported, Supreme Court, 21st January 2003, to which Dr Forde referred, and if necessary, I would be prepared to hold that the present case is composed of perhaps unique elements for argument, and that these and the history of the jurisdictional debate thus far, are sufficient to constitute ‘special circumstances’ for the purpose of escaping the rule in Henderson v. Henderson (supra).

“Necessary and proper party” order – O.11 r.1(h) RSC,
 
Another point raised by Dr Forde on behalf of the plaintiffs is that when O’Hanlon J. gave his judgment on BNFL‘s application to set aside the order of Carney J, he did so not only on the basis that the plaintiffs’ claims were founded on a tort committed within this jurisdiction within the meaning of O.11, r 1(f) RSC, and on the basis of a definition of tort as meaning any wrong unrelated to a contract, but also under O. 11, r 1(h) RSC, namely that BNFL was a necessary or proper party to the plaintiffs’ action against the other defendants, having regard to the close link between the legal claims being made by the plaintiffs against each of the defendants and the apparent logic of litigating both claims together. Dr Forde says that the latter order was not overturned by the judgment of the Supreme Court and that it therefore stands, and the question of whether BNFL is or is not a proper party is therefore res judicata. 

It is certainly the case that O’Hanlon J. decided that BNFL was a necessary or proper party to these proceedings, and he came to that conclusion based on the perceived link which he saw between the claims against the first and second named defendants, and BNFL. He also felt that that link was clear since if it was sought to join the first and second defendants in an action against BNFL, the action against BNFL “would hang or fall on the plaintiffs’ success or failure in establishing liability as against the third named defendant”. In his consideration of this point, Barrington J. concluded as follows at page 216:

	“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 British Nuclear Fuels were resident within this jurisdiction it would be a proper defendant in the present case. Therefore it appears to me that O’Hanlon J. was right in allowing service out the (sic) jurisdiction under this head also.”

I am satisfied that there is nothing in O.11, r.1(h) RSC which suggests that by making an order thereunder, the court by so ordering is at the same time precluding or pre-empting any further debate about the wider issue of jurisdiction to grant the relief sought in the proceedings. One has only to envisage a situation in which on an ex parte application made on the day following, or even prior to, the issue of a Plenary Summons, the court grants the order sought under O11, r.1(h) RSC, and having been served with the proceedings or notice of them, outside the jurisdiction, that defendant takes no step such as BNFL did in this case, namely to move to set aside the ex parte order, but awaits the delivery of the Statement of Claim before formulating his grounds of Defence, one of which by way of preliminary objection, is to challenge the jurisdiction of the Court to make the orders sought by the plaintiff. Could it reasonably be said that by failing to move to set aside the order made under O. 11 RSC, the defendant has produced a situation where, regardless of the nature of the claims themselves, the court has, by the defendant’s default decided the perhaps complex question of jurisdiction, and must be therefore regarded as having jurisdiction forced upon it in circumstances where, if an application had been made to set aside the order, the Court would have so ordered on the basis that it could not possibly have the jurisdiction in question. That seems to be a totally unsustainable argument. Order 11 RSC provides a machinery by which proceedings may be served outside the jurisdiction in cases not covered by the Convention. It does not confer jurisdiction. There is no authority of which I am aware, and certainly none was opened in argument before me, which states or even suggests that an unchallenged ex parte order under O.11 RSC forecloses forever a challenge to jurisdiction by way of defence either at the trial of the action, or as in this case, at the trial of a preliminary issue as to jurisdiction.

Having so found in relation to the res judicata/abuse of process arguments, I will now go on to deal with the arguments put by the parties in relation to the first issue specified by the President of the High Court.

Firstly there can be no doubt that simply because some of the heads of claim are such that the Court has jurisdiction to determine them, such as, in this case the tort claims, it does not mean that automatically the Court has jurisdiction to deal with all the heads of claim. Jurisdiction must exist in relation to each head of claim or relief sought, completely independently of the others. Going back to the question of BNFL being a necessary or proper party, it follows that this could be the case in respect of that portion of the claim in respect of which there is no dispute about the court’s jurisdiction, but it would not follow that BNFL is a necessary or proper party in respect of the remaining parts of the plaintiffs’ claim. Therefore such an order made under O.11(1)(h) RSC could not be determinative of the question of the Court’s jurisdiction to decide the latter category of claims.

The first matter to be addressed in order to deal with the issues directed by the President of the High Court is whether the plaintiffs’ claim for a declaration and injunction is a free-standing claim, amounting to a judicial review of the authorisations, or whether any finding that the required procedures under the EU Directives were not complied with is simply in aid of, or an adjunct to the plaintiffs’ tort claims, since without such a finding the absence of proven personal injury, or proven risk in the future (the quia timet claim) would make the task of the plaintiffs more problematical. I really do not have to concern myself with whether the plaintiffs regard the regulatory claims as free-standing. There has been some shifting of the position of the plaintiffs in this regard. The pleadings, including the replies to particulars and some of the written submissions certainly suggest that the regulatory claim is free-standing and that it is a direct assault upon the legality or validity of the authorisations, whereas in argument at the commencement of day 3 of this hearing Dr Forde, according to the transcript (page 3) stated:

	“There are just two small points which occurred to me in relation to the question of the validity of the authorisations. They are of no concern to the plaintiffs. And as far as what is in the particulars, the particulars deal with facts rather than law. Insofar as the particulars might suggest they are challenging the validity of the authorisations, I can now say no. What is valid in England is determined by England’s own law. They have their own system for determining validity. It is conceivable that the English regulations would be regarded as valid by the English Courts. Our case is that the directive has not been complied with.”

Whether there is any distinction of substance between the two possible interpretations of the regulatory claims is a matter of perhaps needless academic or semantic debate. The question asked of this Court is whether an Irish Court has jurisdiction to decide whether the THORP operation should have been subjected to the EIA and justification procedures under the Directives in question. Such a decision would necessarily involve a finding as to whether the authorisations were validly granted or not. In my view there is nothing to be gained by trying to refine the regulatory claims to the point where the challenge is confined to establishing whether the Directives were complied with. That question must involve a question as to whether they ought to have been complied with, and not simply whether they were complied with. In fact we know as a matter of historical certainty they were not complied with. We also know that there has been a judicial decision of the Queens bench Division in England (per Potts J.). in the Greenpeace case, wherein it has been decided that it was not necessary to comply with those Directives for the reasons stated by him. That decision was not appealed by Greenpeace. 

Mr Gallagher has submitted that BNFL are not seeking to bar the plaintiffs from litigating an issue that is of concern to them. The only question arising is whether they ought to be allowed to do so in this jurisdiction, or whether the appropriate forum is, as he submits, the English Courts. Quite apart from the fact that the Convention specifically excludes administrative actions from its ambit in relation to service of proceedings abroad, he submits that there are very sound reasons of public policy why the courts both here and in the neighbouring jurisdiction have decided that in relation to proceedings to judicially review administrative decisions, the appropriate forum in which to conduct that litigation is the jurisdiction of the body whose decision is sought to be impugned. 

He has referred to the fact that the present case concerns a challenge on the basis that EU Directives have not been complied with, rather than that a local or national law has not been complied with. Certainly that is a distinction, since as equal members of the European Union, we are, as far as EU laws are concerned, operating under the same system of law as other Member States, and it might be thought that one Member State is in as good a position as another to decide if a Directive has or has not been complied with, or should have been complied with. But Mr Gallagher has submitted that the jurisdictional rule is still the same since the whole system of EU law becomes part of the national law of each member state by the process of implementation of directives or the direct applicability of Treaty provisions and Regulations. It follows he would say that the authorisations in the present case are granted, not in compliance with or in non-compliance with EU law, but in compliance or non-compliance with EU directives as transposed into national law. In that way any challenge to the authorisations is a matter for the English courts to determine in just the same way as if the authorisations had nothing to do with EU Directives, but were simply granted pursuant to an English Act of Parliament. 

It would follow that the principles applicable to jurisdiction are still those which have long been recognised in relation to administrative or regulatory claims, namely that the appropriate jurisdiction is that of the place in which the relevant decision has been made, even if it happens to be a citizen of another jurisdiction who may have suffered as a result, or may suffer as a result in the future. In aid of his submissions in this regard, Mr Gallagher has referred the Court to the judgment of McGuinness J. in Adams v. The Director of Public Prosecutions [2001] 1 I.R. 47. In that case, the applicant had been extradited to this country from the United Kingdom and was awaiting trial, but on a charge other than those for which he had been extradited. The British Home Secretary had issued a Certificate purporting to waive the rule of specialty in respect of those charges, and the applicant sought an order of certiorari to quash the certificate of the Home Secretary. It was held that the power to provide such a certificate derived from the Home Secretary’s position as a government minister under the law of the United Kingdom, and was not dependent on Irish law, and was not reviewable by the Irish Courts. In addition to so holding, McGuinness J. considered the situation which would result from a finding of jurisdiction in the following way:

	“In addition it is surely necessary to consider the possible practical effect of the order sought by the applicant. Even if the High Court (or this court on appeal) had theoretical jurisdiction to grant an order of certiorari directing that the certificate of the third respondent be brought up to be quashed, how would such an order be enforced? One has only to pose the question to recognise that the applicant’s position is unsustainable.”

Mr Gallagher also called in aid the decision of the House of Lords in Buttes Gas and Oil Co v. Hammer and another (No.2) [1981] 3 All E.R. 616. Without setting out the complex and interesting facts and history of that case at any length, the relevant fact is that in a counterclaim delivered with their defence, the defendants alleged that the plaintiffs and others had:

	“………wrongfully and fraudulently conspired…to cheat and defraud [Occidental], and further or alternatively to cause and procure Her Majesty’s Government and others to act unlawfully to the injury of [Occidental].”

An application was made by the plaintiffs that the Court should not exercise jurisdiction over the counterclaim on the basis that it involved adjudicating upon ‘acts of state’ of a number of governments. The application to strike out the counterclaim on these grounds was refused at first instance, and by the Court of Appeal. Some six years later and after further pleadings had been exchanged between the parties, and questions of discovery had been disposed of, the matter came before the House of Lords after the Appeal Committee of the House of Lords had granted leave to appeal in respect of a number of aspects of the case. By that time, and having set out a detailed history of the proceedings, Lord Wilberforce was able to state at page 621 of his judgment:

	“This narrative has been necessary to show two things: first, that this House is now in a position to adjudicate on the entirety of the issues raised by the parties at the various stages between 1971 and 1980;  second, that since the last substantive decision of the Court of Appeal (the second decision of 1974) the issues have been more clearly defined and crystallised. This House is now in as good a position as any court is likely to be to form an opinion as to the justiciability of the claims of either side, and the decision has to be made whether the proceedings should be allowed to continue to trial with appropriate discovery or should be terminated by stay or striking out.”

Mr Gallagher referred to this passage in order to draw a comparison with the present case, in the sense that this court, he submits, is now in a better position that was either O’Hanlon J. or the Supreme Court to determine finally the question of jurisdiction, since the issues have now been clearly set out in the pleadings and particulars.

Mr Gallagher then referred to a passage on page 628 of the said judgment of Lord Wilberforce which states as follows:

“So I think the essential question is whether, apart from such particular rules as I have discussed…………there exists in English law a more general principle that the courts will not adjudicate on the transactions of foreign sovereign states. Though I would prefer to avoid argument on terminology, it seems desirable to consider this principle, if existing, not as a variety of ‘act of state’ but one for judicial restraint or abstention…………In my opinion there is, and for long has been, such a general principle, starting in English law, adopted and generalised in the law of the USA, which is effective and compelling in English courts. This principle is not one of discretion, but is inherent in the very nature of the judicial process.”

One of the cases to which Lord Wilberforce referred in his judgment is a decision of the American Supreme Court (Chief Justice Fuller) in Underhill v. Hernandez [1897] 168 US 250. This case arose out of events during a civil war in Venezuela in 1892, in which the defendant, who was a military commander of the anti-administration side of the conflict. Having prevailed in the conflict, Hernandez assumed command of the city of Bolivar, and was the civil and military chief in the city. The plaintiff, an American citizen who had engineering business interests in Bolivar, applied to Hernandez for a passport to leave the city, but this was refused. It was later granted, but Underhill on his return to America, brought proceedings against Hernandez claiming damages for detention in respect of the initial refusal of the application for a passport, as well as for the alleged confinement of Underhill to his own house, and for alleged assaults. At first instance, and on appeal the plaintiff’s case was rejected on the grounds that the acts complained of were the acts of the government of Venezuela and as such were not properly the subject of adjudication in the courts of another government. In the Supreme Court it was held, in sofar as relevant to the present case:

1.	The acts of a foreign government done within its own territory cannot be brought into judgment in the courts of this country.

2.	Every sovereign state is bound to respect the independence of every other sovereign state; and the courts of one country will not sit in judgment on the acts of a government of another done in its own territory.

Lord Wilberforce referred to this decision as part of an interesting examination of the history of judicial restraint in relation to the adjudication of claims related to the acts of another sovereign government in its own country. He refers to a number of decisions of some antiquity now, both in the United Kingdom and in the USA, one of the latter being Oetjen v. Central Leather Co [1918] 246 US 297 where at 304 the judgment of the Supreme Court states:

	“To permit the acts of one sovereign state to be re-examined and perhaps condemned by the courts of another would very certainly ‘imperil the amicable relations between governments and vex the peace of nations.”

I prefer to deal with this question on the basis of the general principle, rather than on the basis of the doctrine of “act of state” or sovereign immunity. There is no claim made on behalf of BNFL of sovereign immunity. It could conceivably arise, if it were claimed, since in all probability BNFL could be regarded as an emanation of the State of the United Kingdom, given the shareholder interest in BNFL by the British Government. But I do not have to decide that and I refrain from so doing lest such an accidental finding should be found to be relevant in some other context, not yet anticipated. But there are general principles which are applicable to the question of jurisdiction and judicial restraint in respect of foreign administrative acts which make it unnecessary to fall back on the act of state principles, and accordingly, while Dr Forde showed that there were recognised exceptions to the act of state doctrine, such as the Bernstein exception, and the commercial exception, it is not necessary for me to deal with that part of his submission made orally and in his written submissions. I am satisfied that in accordance with the general principles set forth in the cases to which Mr Gallagher has referred the Court, that this Court has no jurisdiction to make any finding which either directly or indirectly finds or is dependent on a finding of  invalidity in respect of a foreign administrative decision. 

But, Dr Forde on behalf of the plaintiffs has, of course, also pointed out that there is in the present case an important distinction to be drawn between cases just referred to, and the present case, since what is at issue in the present case is a matter arising under a new legal system, namely European Law, which is a system of law, he says, which is equally applicable in this jurisdiction as in the United Kingdom, and he submits that there is therefore no objection in principle why the courts in this jurisdiction, cannot be in as good a position to interpret that law, as are the courts in the United Kingdom. He submits therefore that arguments based on the inviolability of a state’s sovereignty are necessarily diluted following the accession of both this country and the United Kingdom to the European Union. He submits that there is no longer the same restraint upon the courts of one country adjudicating upon the decisions of administrative bodies in another since both are subject to the same European laws, namely in the present case, the Directives referred to, and he submits that it is just as possible for a Court in this jurisdiction to decide whether the Directives were applicable and ought to have been complied with before THORP was put into operation, as are the UK Courts.

Mr Gallagher has submitted to the contrary, namely that the existence of the system of European Law consequent upon the accession of both countries to the European Union in fact strengthens his argument that the courts of this country should not enter upon a case in which it is sought to impugn the administrative decision of a UK body. He has pointed to the terms of the Euratom Treaty itself, for example Article 37 by which procedures are put in place whereby Member States will provide necessary data to the Commission relating to any plan for the disposal of radioactive waste so that the Commission can decide whether the plans will result in the radioactive contamination of the water, soil or airspace of another Member State, and Article 38 which permits the Commission to make recommendations with regard to levels of radiation, and provides that if a State fails to comply with any directive given under Article 38, either the Commission or any Member State may bring the matter before the Court of Justice. He also referred to Articles 141 and 143 which give the Commission certain powers to bring matters to the Court of Justice, and to Articles 31 and 32 which empowers the Commission to work out and if necessary revise or supplement basic standards, and Article 33 which mandates each Member State to make the appropriate provisions, whether by legislation, regulation or administrative action, to ensure compliance with the basic standards laid down. 

Mr Gallagher has also referred the Court to the provisions of the two directives made under that Treaty, and which the plaintiffs allege have not been complied with in relation to the THORP plant In relation to the Council Directive 85/337 EEC, he refers to the second recital therein relating to the harmonisation of the laws in this regard in the Member States which states:

	“Whereas the disparities between the laws in force in the various Member States with regard to the assessment of the environmental effects of public and private projects may create unfavourable competitive conditions and thereby directly affect the functioning of the common market; whereas therefore it is necessary to approximate national laws in this filed pursuant to Article 100 of the Treaty.”

The Directive then outlines various measures to be taken by Member States, one of which the undertaking of an Environment Impact Assessment. Article 12 of the Directive provides that Member States shall implement this Directive within a period of three years, and that “Member States shall communicate to the Commission the texts of the provisions of national law which they adopt in the field covered by this Directive.” (my emphasis)

In other words, Mr Gallagher submits that there is a procedure available under the Treaty system which allows a Member State or the Commission, to take action in the event that a Member State has failed to adhere to its Treaty obligations, and that this is in addition to any person’s right to avail of any remedy available in the jurisdiction in which a complaint ought to be made, and in this case he submits that a person’s right is to make complaint in the courts of the United Kingdom, since it is only those courts which have the requisite jurisdiction to declare the authorizations of the British Home Secretary in question to be in breach of the Directives in question or that the Directives were applicable. He has also submitted that since the Directive must first become transposed into national law, and in the present case it has been so transposed in the UK by legislation, any act done by an administrative body as required by any such Directive, is nevertheless done by virtue of domestic or national legislation, the directive in question being part of the national legal order. The fact that there exists a European Law system to which all Member States adhere does not dilute, in his submission, the long established and accepted principle of judicial restraint in relation to adjudicating upon the administrative decisions of another sovereign State, even where such a decision is made on foot of an implemented EU Directive. 

He also points out also, of course, that in the present case, it is not the case that the plaintiffs are therefore without any potential remedy. However, he says that their remedy lies in the UK Courts if they have a legitimate grievance, and that it is there that they should bring their complaint for determination. 

The system of harmonisation of national laws by the implementation of Council Directives by means of national legislation is further underpinned, in the interests of ensuring that all Member States in effect operate under the same laws, by the ability of the Courts of a Member State to refer a necessary question arising in a case brought in the national court, to the Court of Justice. 

Mr Gallagher referred the Court to a decision of the Court of Justice in Saarland and Others v. Minister for Industry Post and Telecommunications and Tourism and Others, Case 187/87 [1989] 1 CMLR 529, which shows the reference procedure in operation, but in addition shows that when certain parties, including French, German and Luxembourg interests, sought to challenge authorizations made by the French authorities in relation to the treatment and discharge of radioactive waste materials into the River Moselle, the challenge was made in the court of the Member State whose administrative body had made the orders in question. Mr Gallagher states that there has been no case in which the court of one Member State has been asked to adjudicate upon the validity of an administrative order or decision of another Member State. In the present case, he submits that it is clear that in effect that is what this Court is being asked to do, even if the claims have the appearance of a claim in tort, and that this fact is highlighted by the fact that included in the plaintiffs’ claim is a claim for injunctive relief in the event of the court being satisfied that the declarations sought should be granted. He submits that the plaintiffs’ claims amount to an assault upon the validity of the authorizations on the basis that the procedures under the Directives in question ought to have been, and were not, followed. 

Mr Gallagher had, earlier in his submissions, brought to the Court’s attention, the fact that in the Greenpeace judgment by Potts J, to which I have already referred, that learned judge has in fact decided that on a correct interpretation of the Directive 85/337 the construction of THORP and the bringing of it into operation, and the consequent discharges, were a single project which predated the Directive, and that therefore the procedures under the Directive for the carrying out of an Environment Impact Assessment and the justification procedure were not obligated in relation to the THORP plant and its operation. This is the same decision as the plaintiffs are seeking in their present proceedings as far as BNFL are concerned. Their proceedings as against the first and second defendants seek different relief, some of which relate to an alleged failure on the part of the Irish Government to intervene on behalf of the citizens of Ireland in the Greenpeace proceedings. The decision of Potts J. was not appealed by Greenpeace.

Apart from questions about the ability of an Irish Court to decide on the validity of the authorizations, Mr Gallagher has referred to the fact that in relation to the same issue, an English Court has already decided it in any event. In this regard he has adverted to the fact that these proceedings were commenced some seventeen days following the decision of Potts J. and he says that it was at all times open to these plaintiffs to have intervened in the Greenpeace proceedings, and that they cannot simply wait for that decision to be handed down, and in the event of an adverse decision there, seek to have the same issue determined, in effect, again in another jurisdiction, by couching the claim in terms of a tortuous claim, which must for its success depend upon this Court making a finding of invalidity in respect of the authorizations on the basis that procedures under the Directives have not been undertaken.

I have already dealt with Dr Forde’s submissions relating to res judicata and abuse of process, as well as his submission in relation to the effect of the Order made under   O.11, r.1(h)RSC on the basis of BNFL being a necessary or proper party to the proceedings against the other defendants. But Dr Forde has made a further submission on a ground not made at any previous time in these proceedings. This submission is that a breach of an EC Directive is itself a tort, and has been so characterised by both the Irish Courts and the English Courts. I shall, for convenience refer to such a tort as a “Eurotort”. On this basis, he seeks to bring the claims in relation to breaches of the Directives under the umbrella of the tort claim, since the capacity of an Irish Court to determine a claim based on tort is not in dispute. There is clearly jurisdiction to determine such a claim by virtue of Article 5(3) of the Convention, and the Rules of the Superior Courts recognise this and provide for service of such proceedings under O.11A RSC. However, Dr Forde submitted that it was also sufficient to bring the claim within the terms of O.11, r.1(f) RSC.

Dr Forde has relied upon the decision of Carroll J. in Tate v. The Minister for Social Welfare [1985] 1 I.R. 418 wherein that learned judge held, inter alia:

	“That a breach of obligation to observe community law was a tort within the meaning of s. 11, sub-s.2 of the Statute of Limitations, 1957; and that accordingly the plea of laches did not apply.”

Dr Forde submits that in the present case, the plaintiffs are alleging that there was a failure to observe Community law, namely a failure to adopt procedures mandated by certain Directives, and that this therefore amounts to a tort. But the cause of action in Tate arose out of this State’s failure to implement Council Directive 7/79/EEC relating to the equal treatment of men and women in matters of social security payments. Carroll J. found that the case amounted to a claim not for a simple debt in respect of the amount which the plaintiff ought to have received under the Directive, but was a claim for general damages for breach of the Directive in accordance with the damages principles enunciated in Frankovich v. The Italian Republic (Cases C-6/90 and C-9/90) [1991] 1 E.C.R. 5357. While in the present case there is a claim for damages included, it is not the primary claim, and certainly the Replies to Particulars furnished have not particularised this aspect of the claim in any substantial way, and this is in contrast to the Particulars provided in respect of the regulatory claims. These proceedings could not realistically be classified as a claim primarily for damages.

 In any event it certainly is not a claim for damages of the kind brought in Tate, namely against the State for its failure to implement a Directive. Simply because there has been a breach of a Directive does not mean that there is an entitlement to damages, just as a breach of statutory duty does not automatically give rise to a claim for damages for breach of that statutory duty. There must be a causal link established. In this case it can certainly be submitted, as it has been by BNFL, that even supposing that there has been a breach of the requirements under the Directives, this has not given rise to any compensatable damage to the plaintiffs, just as in the converse, if damage was negligently caused to the plaintiffs, BNFL could not simply rely by way of defence on the fact that they had complied with the terms of the Directives.

In my view it is clear therefore that, while the learned Carroll J. found that such a failure to implement the Directive gave rise to a claim in tort, it was nevertheless a tort committed in this jurisdiction, and therefore one over which an Irish Court has jurisdiction. It may be that a breach of a Community law by the UK authorities, namely, as in this case, a failure to adopt procedures mandated by certain Directives incorporated into UK domestic law by legislation, comes within a broad definition of a tort, but, in the present case, it must be regarded as a tort committed in the UK, and therefore justiciable only before the Courts in that jurisdiction, just as a person who suffers personal injuries in a road traffic accident in England, must bring his action in tort thereby arising before a court in that jurisdiction. 

It should also be noted that, in Tate, the classification as a tort of the breach of an obligation to observe Community law was in the context of whether the claim was a tort within the meaning of s.11, subs.2 of the Statute of Limitations, 1957, and on that basis it was held that the doctrine of laches which had been pleaded did not arise. That decision must be confined to that context, and cannot be extended to the question of this court’s jurisdiction to deal with a breach of another State’s obligation to observe Community law, which is what Dr Forde contends.

The logic following from Dr Forde’s submission, it seems to me, would be that if the plaintiff in Tate, and all the other associated plaintiffs, were by now dispersed among several EU Member States, there could be possible a multiplicity of different actions, taking place in perhaps all such Member States in which such plaintiffs now resided, and at different times, in all of which the same issue would arise for determination, namely whether the Irish Government, being in breach of its obligation to implement the Directive, was liable to the plaintiff in question. That would be an absurdity, and a result which could never have been intended by a decision such as that in Tate, where the definition of a tort was stated to include a breach of a European law obligation by the State. It could not be the case that any such breach could be litigated in any Member State. 

If a breach of the Directives in the present case amounts to a so called eurotort, then it must be a tort for the purpose of the Convention, and the proceedings could be served under the provisions of O.11A, RSC, and no application would need to have been made under O.11,RSC. 

On the assumption now that the claim is being so characterised by Dr Forde in aid of his submission, it is interesting to look at the question of the Irish Court’s jurisdiction to determine the claim, by reference to the decision of the Court of Justice in Bier v. Mines de Potasse D’Alsace [1976] ECR 1735. That is a decision which, on a reading only of the headnote, would appear to lend some support to Dr Forde’s submission. The headnote reads:

	“Where the place of the happening of the event which may give rise to liability in tort, delict or quasi-delict and the place where the event gives rise to damage are not identical, the expression ‘place where the harmful event occurred’, in Article 5 (3) of the Convention of 27 July 1968 on jurisdiction and the enforcement of judgments in Civil and Commercial matters, must be understood as being intended to cover both the place where the damage occurred and the place of the event giving rise to it. The result is that the defendant may be sued, at the option of the plaintiff, either in the courts for the place where the damage occurred or in the courts for the place of the event which gives rise to and is at the origin of that damage.”

Given that in the present case there is, as yet, no proven damage in this jurisdiction, I am assuming for the purpose of this discussion, that the quia timet element of the plaintiffs’ claim is what would bring Article 5(3) into play, because without establishing some causation between the alleged tort and some damage suffered by the plaintiffs, the court cannot make an award against the defendant. In other words the plaintiffs would have to show that as a result of the failure by the UK authorities to adhere to procedures mandated by the Directives, the plaintiffs have cause to fear that personal injury will result or has resulted, and that, only then could declarations be made and injunctions be granted.

In Bier, the plaintiffs were commercial entities in the Netherlands. The defendant was a French company which, as part of its commercial activity discharges significant quantities of industrial waste in the form of residual salts into the River Rhine. The plaintiff, Bier, carried on a nursery gardening business, and for the purposes of irrigation, took water from that river within the territory of the Netherlands. The high salt content of the water taken, caused by the defendant’s excessive discharges, caused damage to the Bier business, and they sought redress in the form of damages, in the Dutch courts. The defendant defended on the basis, inter alia, that the Dutch courts had no jurisdiction. The Dutch court of first instance held that it had no jurisdiction because the event that had caused the damage could only be the discharge of the residuary salts into the Rhine in France, and therefore under the Convention of 1968 the case came under the jurisdiction of the French courts for the area I which the discharge took place. An appeal against this decision was lodged and the Court of Appeal decided that a reference to the Court of Justice should be made so that the ECJ could make a decision as to what exactly is meant by “the place where the harmful event occurred” in Article 5(3) of the Convention. In particular it asked the ECJ to say whether the meaning is “the place where the damage occurred (the place where the damage took place or became apparent) or rather, “the place where the event having the damage as its sequel occurred (the place where the act was or was not performed).

In the Bier case it is important to bear in mind that it is a river water pollution case, and this has the potential to give rise to claims by citizens and bodies in a multiplicity of Member States since the river flows through a number of states. It is also a claim in which actual damage occurred, the success of which was not dependent upon a finding of illegality or invalidity of any administrative decision. In other words it was not a ‘euro-tort’ claim. 
 
The judgment of the Court refers to the provision of Article 5(3) of the Convention, and, for convenience, I will set it out as relevant, as follows:

“A person domiciled in a Contracting State may, in another Contracting State, be sued… … … (3) in matters relating to tort, delict or quasi-delict, in the courts for the place where the harmful event occurred.”

The Court went on to state that this provision must be interpreted in the context of the scheme of conferment of jurisdiction which forms the subject-matter of Title II of the Convention, and that this scheme is based on a general rule, laid down in Article 2, that the courts of the State in which the defendant is domiciled shall have jurisdiction, but also that Article 5 makes provision in a number of cases for a special jurisdiction which the plaintiff may opt to choose. In the end, the Court decides that a plaintiff can elect to bring the proceedings either in the place where the damage occurred, or in the place where the cause of that damage took place. 

However, there is nothing in the wording of Article 5(3) of the Convention, or in the judgment in Bier, which suggests that it was contemplated that a challenge to the validity of an administrative act, or a ‘euro-tort’ dependent upon such a challenge, could be mounted other than in the jurisdiction in which the administrative decision was made. In other words, the question of jurisdiction would come within the terms of Article 2, the general provision, and not under any of the special cases referred to in Article 5 of the Convention. Article 2 provides a general rule, subject to Article 5, that the courts of the state in which the defendant is domiciled shall have jurisdiction. Given the fact that a decision in favour of the plaintiffs would of necessity entail the court making a finding of invalidity in respect of the authorizations based on a failure to adhere to procedures laid down by the Directives, and also bearing in mind the fact that the Queens Bench Division in England has already decided that the Directives are inapplicable to the operation of the THORP plant, it seems inconceivable that, even if the plaintiffs’ claim, is accepted as coming within the concept of a “euro-tort”, it could possibly have been contemplated that it would constitute a claim under Article 5(3) of the Convention, but would rather be a claim to which Article 2 would more naturally apply. Hence, I would not consider that the decision in Bier as broadly stated in the headnote which I have quoted in full, would automatically apply in the present case so as to entitle the plaintiffs to elect whether to bring the proceedings in this jurisdiction rather than in England. 

Dr Forde has also submitted that under Community law there is an obligation upon Member States to provide an effective remedy for breaches of EU obligations. That of course is so. But there is a remedy in this case and it exists before the Courts in England. The obligation on the Irish State is to provide an effective remedy in respect of this State’s breaches of obligation. Such a remedy is readily available, as Tate itself demonstrates. But it is another question altogether to say that this State must provide a remedy in respect of another Member State’s breaches of EU obligations.

A further submission made on behalf of the plaintiffs is that this Court has an inherent jurisdiction to accept jurisdiction in this claim. He calls in aid a decision of the President of the High Court in McK v. EH [2002] 1 I.R. 72. In that case the plaintiff obtained an order allowing the service of notice of the proceedings on the defendant in the United Kingdom. Those proceedings sought relief in order to prevent the dissipation of certain monies held in Irish Bank accounts, pursuant to the provisions of s.2 and s.3 of the Proceeds of Crime Act, 1996, such relief being in the nature of injunctive relief prohibiting the defendant from disposing of or otherwise dealing with certain specified assets within this jurisdiction. The defendant sought to set aside the order on the grounds that the Court had no jurisdiction in respect of the claim, since the relief sought did not fall within the category of case referred to in O.11, r.1 (g) RSC, which provides that service out of the jurisdiction may be allowed by the Court whenever:-

	“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 sought in respect thereof.”

It was contended first of all that the proceedings were in reality not injunction proceedings, but that the substantive remedy sought was in the nature of forfeiture or confiscation of assets, and as such did not fall within O.11, r.1(g) RSC. It was contended that there was no other sub-paragraph of  O.11 RSC into which a claim of forfeiture fell, and that in this regard the Irish Rules differed from the English equivalent rule, where there was a provision dealing with the service out of the jurisdiction in respect of a forfeiture claim. The learned President refused to set aside the order, on the basis that while the categories of cases set forth in O.11 RSC was exhaustive, nevertheless the sub-clauses thereof had to be widely construed, and that since statutory injunctions came within the ambit of O. 11, r.1(g) RSC it was the duty of the court to give effect to the intention of the Oireachtas in creating the injunctions by s.2 and s.3 of the Proceeds of Crime Act, 1996, and that if a statute confers jurisdiction upon the courts it is the duty of the courts to give effect to the intention of the Oireachtas and any conflict between the provisions of a statute and the rules of procedural law, including the Rules of the Superior Courts, must be resolved in favour of the former. 

Dr Forde relied on a passage from the judgment of the learned President of the High Court at page 79 of his judgment, where the President stated as follows:

	“… There is the distinction to be drawn between substantive law and procedural law. Substantive law creates rights and obligations and determines the ends of justice embodied in the law, whereas procedural law is an adjunct or an accessory to substantive law. It is by procedure that substantive law is put into motion, and it is procedural law which puts life into substantive law, gives it its remedy and effectiveness and brings it into being.” 

The learned President then expressed himself as satisfied that:

	“…it is the duty of the court to give effect to that intention [of the Oireachtas] and if necessary, have resort to the inherent jurisdiction of the court pending the introduction of appropriate rules of procedure to give effect to the intention.”

Dr Forde submits that while this decision is not binding on me as such, and even though the decision is under appeal, it nevertheless supports his submission that in the present case, no failure in the Rules of the Superior Courts to provide in O. 11 thereof for the particular type of proceedings should prevent this Court from finding in favour of having jurisdiction, within the inherent jurisdiction of the Court. He submits that accordingly the concept of a necessary or proper party in O.11, r.1(h) RSC should be widely construed, as should the concept of tort.

But I am satisfied that in this regard, Dr Forde is overlooking the fact, as identified by the learned President, that it is not the Rules of the Superior Courts which create and define the Court’s jurisdiction to hear particular types of cases. It is the substantive law, to which the Rules are merely servants. The Rules provide a mechanism whereby the permitted causes of action can be litigated in this jurisdiction, and while I accept completely that the Rules should be widely interpreted, and interpreted where possible in a way which enables cases to be heard rather than in a restrictive way which might prevent cases from being heard, one must never lose sight of the fact that the Rules do not make substantive law. I am satisfied that the question of whether this Court has jurisdiction to determine a case such as the present one is a matter of substantive law, and cannot be decided merely on the basis of a generous and wide interpretation of Order 11 RSC. This point can be expressed more clearly perhaps in another way. Let us suppose that the Court was satisfied that as a matter of substantive law, this Court had jurisdiction to determine the plaintiffs’ claims, including the making of the declarations and the granting of the injunctive relief, but by virtue of some perceived limitation or lacuna in the wording of O.11 RSC, there was no procedure provided for by which the proceedings could be served on the defendants outside the jurisdiction, then the principles identified by the learned President in McK v. EH could be called in aid, so that a method could be found to give effect to the substantive law entitlement to litigate the matter in this jurisdiction. 

In addition to these submissions, Dr Forde has submitted that under EU law, national rules must not stand in the way of a litigant who has a good cause of action under European law. He says that these plaintiffs are such litigants who have a good cause of action under European law. That is undoubtedly so as a general proposition – see for example the case of Van Schijndel, Cases C-430, 431/93, [1995] ECR 1-4705, and also cases such as R v. Secretary of State for Transport, ex parte Factortame (No.2) Case C-213/89, [1990] ECR 1 – 2433; [1990] 3 WLR 818. But the present case is not really a case under European Law in the sense of the plaintiffs seeking relief against the State, because for example the State has failed to implement a directive. The plaintiffs are seeking an ordinary Common Law remedy which has been characterised at times as a tort or quia timet action, and also as a judicial review type action in which certain declaratory reliefs and injunctions are sought, the basis for which is an alleged failure on the part of BNFL to adhere to procedures mandated by certain EU Directives. In such cases the ordinary rules as to jurisdiction apply. The plaintiffs have their right to litigate and a remedy is available. It is simply a question of which court is the appropriate court to hear and determine the issues. There is no suggestion that some absence of national rules is standing in the way of an effective remedy for these plaintiffs in this jurisdiction. If that were so, then the effect would be to overwrite and eliminate the existing principles by which matters of jurisdiction are determined, and would mean that by virtue of such decisions litigants could chose at will the forum in which they wish to bring their claim.

 It follows, for all the reasons outlined above, that I am satisfied that this Court does not have jurisdiction to determine and declare that THORP should have been subject to an environmental impact assessment within the meaning of EC Council Directive 85/337 (as amended) and/or that it should have been subject to a “justification procedure” as provided by Euratom Directives 80/836 and 84/467 (as amended). 

Has the Court jurisdiction to grant a mandatory injunction compelling the third named defendant to comply with the said directives?

This is the second issue directed for determination by the President of the High Court. It follows in my opinion that if this Court has no jurisdiction to make the determinations and declarations specified in the first question, it cannot have jurisdiction to grant any injunction, the basis of which would be those very same determinations and declarations. Such a finding is independent of any general principle which I would have thought existed that this Court has jurisdiction only within the territory of the State. The question posed by McGuinness J. in Adams as to how, supposing the Court had jurisdiction to quash by certiorari an order of the British Home Secretary, such an order would be enforced, has resonance in the circumstances of the present case, if one was to presume that this court had jurisdiction to grant an injunction, the effect of which would be to close down the THORP operation at Sellafield. This Court has no capacity to enforce its own orders outside the State, and since the Court ought not to act in vain, it follows that it would not make an order which it has no capacity to enforce. 

What is the applicable law by reference to which the plaintiffs’ claims are to be determined?

This issue is of relevance only if the decision of this Court is that the plaintiffs’ claims can be determined in the Irish Courts. The question would then arise as to what is the applicable law by which those claims should be judged. It would be contended by BNFL that in that event the question as to whether the operation of THORP should have been subjected to the procedures mandated by the Directives is a matter to be determined by English law, especially since those Directives were transposed into English domestic law by means of an Act of the English Parliament. Dr Forde on the other hand would submit that the law by which the claim related to the directives is determined is in fact EU law, and as such is identical in this jurisdiction as in the United Kingdom, and that in so far as the Courts in this jurisdiction might require guidance in relation to EU law they can avail of the reference procedure to the Court of Justice. However, I do not have to decide this question, given my answer in relation to the jurisdiction question.

If the Court has jurisdiction in respect of the plaintiffs’ claims against the third named defendant should the court in all the circumstances decline such jurisdiction or stay the proceedings on the grounds of ‘forum conveniens’?

For the same reason, I do not need to address this question.

For the sake of completeness, I should refer to the fact that after Mr O’Donnell had completed his submissions by way of response to the submissions of Dr Forde, Mr Paul Callan SC on behalf of the plaintiffs handed to the Court a document entitled “Draft Questions For Reference to the European Court of Justice”. He indicated that since there were questions of European law involved in the determination of the issues directed by the President of the High Court, and if this Court felt it desirable or necessary that matters ought to be referred to the Court of Justice by way of a reference, these were suggestions as to the form of the questions to be asked. He indicated that if, during the course of my deliberations I felt such a reference was necessary, his side would be available to discuss further the questions in further detail. Mr Gallagher in response to this expressed surprise that this suggestion of a reference had not arisen during submissions to the Court by the plaintiffs. He also submitted that the proposed questions are not questions such as can be referred to the Court of Justice under the provisions of Article 234 EU. In any event he submits that the question this court has to determine is simply jurisdiction, and the questions proposed do not relate to that question. I do not need to deal with the matter in any other way than to say first of all that I have not found it necessary to consider a reference in relation to the issues directed by the President of the High Court, and also to say that if there was to have been any question of the plaintiffs seeking a reference, the way to deal with that matter is other than the manner in which the question was introduced at the end of the submissions in this case.