Supreme Court

Short v Ireland, AG, British Nuclear Fuels and Others 

No 174/95 

24 October 1996 

BARRINGTON J: 

On the 22 March, 1994, Mr Justice Carney made an order in this case giving leave to serve notice of the Plenary Summons herein on the third named defendants, British Nuclear Fuels plc, out of the jurisdiction at the registered office of the said defendant at Risley, Warrington, Cheshire, England. British Nuclear Fuels entered a qualified appearance to the said Summons for the purpose only of contesting the validity of the order which had been made giving leave to serve out of the jurisdiction and also the validity of the service of the proceedings. 

By his Order dated the 30 day of March, 1995, Mr Justice O'Hanlon refused to set aside the order of Mr Justice Carney dated the 22 day of March, 1994 but set aside the service of the Plenary Summons on British Nuclear Fuels plc, directed that the said Plenary Summons be renewed for a further period of six months from the date of his Order and ordered that Notice of the said Summons together with a copy of the Order of the 22 March 1994 be served on the said British Nuclear Fuels plc. 

The Plaintiffs and the said British Nuclear Fuels plc appealed and cross-appealed against the said Order of Justice O'Hanlon. Insofar as the grounds of their appeal and cross-appeal were based on alleged non-compliance with the Rules of the Superior Courts these grounds of appeal and cross-appeal were abandoned at the hearing before this Court. The only matter to be decided by this Court therefore is whether Mr Justice O'Hanlon was right in refusing to discharge the said Order of Mr Justice Carney dated the 22 March 1994. 

THE PLAINTIFFS' CLAIM 

The Plaintiffs' all live in the County of Louth and all claim to be citizens of Ireland and of the European Union. They bring this case on their own behalf and on behalf of their families and the "unborn"within the meaning of the Irish Constitution. 

The third named defendant, and the applicant in the Motion, is British Nuclear Fuels plc which is a limited company, registered in England, the shares of which are held by or on behalf of the United Kingdom through its Secretaries of State. British Nuclear Fuels plc was established to fulfil the purposes of the United Kingdom's Atomic Energy Act 1971 and, inter alia, to facilitate the commercial development of nuclear fuel. Its' place of business is at Selafield in Cumbria, where it is holder of a site licence under the United Kingdom Nuclear Installations Act, 1965. It presently carries on business involving nuclear reactors including the reprocessing of spent nuclear fuels at the said site. 

In the late 1960s' British Nuclear Fuels decided to establish at the said site a thermal oxide reprocessing plant (hereinafter called Thorp) designed to reprocess spent Oxide fuel from nuclear reactors from Great Britain and from overseas. 

British Nuclear Fuels applied for, and after a public enquiry, obtained, in May 1978, outline planning permission for the said project. Full planning permission followed in 1983. Construction work began and the building of Thorp was completed in February 1992. 

The Plaintiffs' all reside on the East coast of Ireland opposite Selafield and claim to be adversely affected by British Nuclear Fuels operations. The Plaintiffs' claim moreover that British Nuclear Fuels, before carrying out the said Thorp project, should have carried out an environmental impact assessment as required by Council directive 85/337 EEC but failed to do so. They claim moreover that British Nuclear Fuels is in breach of its' obligations under EC Council Directive 80/836 (the Euratom directive) as amended by 84/467 and failed to provide adequate or satisfactory information to the public, including the Plaintiffs, establishing that the gains to be derived from the operation of Thorp exceeded the risks and disadvantages which accompanied such operation. 

The Plaintiffs' claim that the gaseous and liquid discharges from the British Nuclear Fuels' site at Selafield have already caused considerable personal health and environmental damage and economic loss in the general area where the Plaintiffs live. They claim that increased radioactive contamination arising from the Thorp project will eventually result in the death of an estimated 2,000 people arising out of the first ten years of the operation of Thorp. They claim that the Plaintiffs and other Irish people are and will be included among the people who will die or are at risk of dying as a result of the Thorp operation. 

The Plaintiffs claim that the operation of the Thorp project involves a significant risk of serious accidents which could involve incalculable harm to civilians and property. They say that the commissioning and operation of the Thorp project constitutes in itself a source of mental distress and psychiatric injury to the Plaintiffs and to their families especially having regard to the absence of the environmental assessment required by Directive 85/337 and/or the justification required by Directive 80/836 and having regard to the conduct of British Nuclear Fuels in relation to the Selafield site. 

As a result the Plaintiffs and their families allege that they will be caused to suffer and to continue to suffer mental distress, psychiatric injury, damage and/or increased risk of damage to their personal health, interference with their enjoyment of the natural environment and economic loss and they allege that in due course the unborn will suffer in the same way. 

The Plaintiffs' claim against British Nuclear Fuels:- 

(i) Declarations that the Nuclear Fuel reprocessing activities which the said Defendant is beginning to carry out at its' site at Selafield, Cumbria, namely the Thorp project, are being or are about to be conducted in contravention of:- 

(a) Council directive 85/337 of the 27 June 1985 by reason of the non-existence of an environmental impact assessment as to their effects as required by the said directive. 

(b) Council directive 80/836 Euratom, as amended, by reason of the lack of justification within the meaning of the said directive prior to the purported authorisations of liquid air or other discharges from the said Thorp installation and project. 

(c) The precautionary principle and/or the principle that preventative action should be taken, contrary to Article 13R of the Treaty of European Union. 

(d) Customary International Law. 

II. Such further or other declarations as to this Court sees fit. 

III Injunctions restraining the said Defendant from:- 

(a) Carrying on its' reprocessing activities until the said directives have been fully complied with. 

(b) Discharging radioactive substances from the said Thorp Installation and Project into/or over the Irish Sea. 

(c) Contaminating with radioactive substances the sea, seabed, seashore and the areas and the jurisdiction of the state contiguous to the seashore and adjacent to the residences and lands of the Plaintiffs. 

(d) Breaking the precautionary principle and the principle that preventative action should be taken contrary to Article 13R of the Treaty of European Union. 

(e) Breaching generally accepted principles of international customary law. 

(f) Such other injunctions as to the Court may see fit. 

IV. Damages and/or compensation and/or restitution to include exemplary and/or aggravated damages for:- 

(a) Assault. 

(b) Nuisance to the Plaintiffs' property and to the Plaintiffs. 

(c) Trespass to the Plaintiffs' property and to the Plaintiffs. 

(d) Negligence. 

(e) Wrongful infliction of mental distress on the Plaintiffs'. 

(f) Wrongful invasion of/or interference with the Plaintiffs' natural environment. 

(g) Breach of the precautionary principle and/or the principle that preventative action should be taken as regards the environment rather than action contaminating same contrary to 

Article 13R of the Treaty of European Union. 

(h) Exposing the Plaintiffs' to unnecessary and/or unreasonable risks. 

(i) Breach of established principles of customary international law. 

(j) Breach and/or invasion of the Plaintiffs' rights under the Constitution of Ireland. 

(k) Breach and/or invasion of the Plaintiffs' rights under the Treaty of European Union. 

EXPERT OPINION 

The Plaintiffs' application for service out of the jurisdiction was supported by Affidavits from two experts. The first was Mr John Henry Large, Chartered Engineer, who described the processes involved in the Thorp project in considerable detail and gave it as his professional opinion that the operation was likely to cause grave longterm detriment to the Plaintiffs and others inhabiting the East coast of Ireland. The second was Dr Mary Grehan, a Medical Practitioner in the Louth area, who had carried out an extensive study of physical abnormalities detected over a period of years in patients in the locality in which she practised and who gave as her opinion, as a result of her research, that a likely cause of such abnormalities was the operation of the Selafield plant in Cumbria. 

It would be unreal to assume that these allegations will not be fiercely contested at the hearing of the Action, if there is one, but nevertheless it appears to me that Mr Justice O'Hanlon was right in holding that the Plaintiffs' had established a "good arguable case" for the purposes of an application for service out of the jurisdiction under Order 11 of the Rules of the Superior Courts. 

ORDER 11 

The Plaintiffs' claim is clearly a many facetted one but nevertheless it is clear that the basic claim is in the nature of a Tort or Quia Timet Action. Order 11 permits service out of the jurisdiction of Notice of an Originating Summons on a person who is not a citizen of Ireland where:- 

(b) the Action is founded on a Tort committed within the jurisdiction; or -- 

(g) any injunction is sought as to anything to be done within the jurisdiction, or any nuisance within the jurisdiction is sought to be prevented or removed whether damages are or are not also sought in respect thereof . . ." 

Whether the terms of sub-paragraphs (f) and (g) above are wide enough to include actions for relief arising out of alleged breach of constitutional rights or alleged breach of European Directives or whether the distinction is of any importance in the circumstances of this case, are matters which, I think, could properly be left to the trial of the Action. 

The Plaintiffs' claim against the first two Defendants (Ireland and the Attorney General) is that they did not take such Action as was open to them to protect the personal rights of the Plaintiffs against the alleged attack being made on them by British Nuclear Fuels Ltd. Order 11 Rule 1 paragraph (h) permits service out of the jurisdiction where:- 

"Any person out of the jurisdiction is a necessary or proper party to an Action properly brought against some other person duly served within the jurisdiction". 

The standard test to be applied in exercising this jurisdiction is whether the person out of the jurisdiction would, if he were within the jurisdiction, be a proper person to be joined as a Defendant in the Action against the other Defendants. One can have no doubt that if British Nuclear Fuels were resident within this jurisdiction it would be a proper Defendant in the present case. Therefore it appears to me that Mrs Justice O'Hanlon was right in allowing service out the jurisdiction under this head also. 

Finally Mr Justice O'Hanlon held that the balance of convenience lay in favour of trying the case in the Irish Courts and, subject to what is said below, there was no serious challenge to his decision on this specific point. 

It will therefore appear that if we are to regard the claim as being essentially a Tort or Quia Timet Action the case for service out of the jurisdiction under Order 11 has been made out. 

The Brussels Convention. 

The Brussels Convention of 1968 was adopted in accordance with the provisions of Article 220 of the EEC Treaty which encouraged member States of the European Economic Union to enter into negotiations with a view to securing for the benefit of their Nationals the simplification of formalities governing the reciprocal recognition and enforcement of Judgments in the European Community. It deals with disputes concerning "civil and commercial matters". The present dispute is clearly not a commercial dispute. It concerns an alleged Tort Delict or civil wrong. Whether the scope of the convention is wide enough to include Actions for damages for alleged breach of constitutional rights or alleged breach of a directive, or whether the distinction is of any importance in the circumstances of the present case, are matters for further discussion. Two matters do however appear clear. It is possible to invoke the convention to institute proceedings in the national jurisdiction where the effect of the alleged wrongful Act is felt. Secondly it would not appear to be possible to invoke the convention in an Administrative Law Action. It may be possible to invoke the convention where the Action is essentially based on some civil wrong but also contains some minor elements of administrative law. Under these circumstances the Plaintiffs' Legal Advisers deliberately chose not to invoke Article 11(a) of the Rules of the Superior Courts, which allows a Plaintiff to institute proceedings without the prior leave of the Court where he seeks to rely upon the convention, but to apply for leave under Article 11 in accordance with the traditional procedure for applying for service out of the jurisdiction. Under these circumstances it does not appear necessary to discuss the Brussels Convention any further at this stage. 

JURISDICTION 

The main point raised by British Nuclear Fuels in this Motion is that the Irish Courts have no jurisdiction to deal with the Plaintiffs' complaints or, if they have, the Irish Courts should, in all the circumstances of the case, decline jurisdiction, in respect of some, if not all, of the Plaintiffs' complaints. 

British Nuclear Fuels say that they have complied with all the appropriate procedures in the United Kingdom. They have gone through a public inquiry, they have obtained the necessary licences authorisations and permissions under the law of the United Kingdom. They have successfully resisted a challenge to their activities in the Queens Bench Division in England. 

In these circumstances they say that for the Irish Courts to entertain the present case would be, in effect, to interfere with the decisions of a neighbouring sovereign power, to embark on judicial review of decisions made by the competent authority in another State and to fail to respect the decision of the English High Court made within its own jurisdiction. 

JURISDICTION OF NATIONAL COURT Mr Paul Callan SC, on behalf of the Plaintiffs', denies that he is attempting to interfere, in any way, with the jurisdiction or competence of the Courts or the Government of the United Kingdom. 

Let us look at the matter first as a question of National Law leaving aside any question of European Law. It may be true that the activities of which the Plaintiffs complain take place in the United Kingdom. But what gives the Plaintiffs' a cause of action, if they have one, is not the activities as such but the allegedly harmful results of these activities in Ireland in the area where the Plaintiffs' reside. It is these allegedly harmful results which give the Irish Courts jurisdiction to deal with the complaints, and, if they find the complaints established, to attempt to give the Plaintiffs' relief, without trespassing on the jurisdiction of the Courts of any neighbouring State. Prima facie the matter would appear to be simply a matter of National Law; the Plaintiffs' would appear to be entitled to bring their claim; and the Irish Courts would appear to have jurisdiction to entertain it. 

EUROPEAN LAW 

The case may of course develop in a much more complicated way. Prima facie it is difficult to see how any provision of English Law could make legal in Ireland injury or damage which would otherwise be tortious under Irish Law. Certainly it is hard to see how any provision of UK Law could deprive the Irish Courts of jurisdiction which they would otherwise have. Prima facie the relevant law would appear to be the lex loci delicti rather than the law of the United Kingdom. 

If however British Nuclear Fuels were to attempt to justify the effects in Ireland of it's activities in England by reference to the law of the United Kingdom the Plaintiffs' say that they would then invoke the alleged non-compliance by British Nuclear Fuels with the European directives pleaded to attack any administrative authorisations which British Nuclear Fuels may have received for the Thorp project. 

Inevitably there is an element of shadow boxing in this which is one reason why the matter is best left to the trial Judge. 

If however the case comes to be discussed as a case governed by European Law very different considerations may apply. First the outstanding characteristic of the European Community is that it is a community governed by law. It is debatable to what extent the old system of national sovereignty which was reflected in many of the cases relied upon by British Nuclear Fuels in the hearing of this Motion, applies between two States both of whom are members of the Community. Certainly in the sphere in which the Community Legislator has acted Community Law is supreme and the National Law of the member States must give way to it. Again there is within the European Community no hierarchal structure of Federal Courts to which the citizen can appeal to resolve conflicts between European and National Law. Every National Court within the Community is a European Court and must give primacy to European Law over National Lab where there is a clash between the two. The National Court may look to the European Court of Justice for guidance but the ultimate responsibility for enforcing European Law rests with the National Court before which the problem arises. This could have serious consequences in the event of British Nuclear Fuels seeking to rely on a British administrative authorisation and the Plaintiffs' attempting to argue that the authorisation was invalid for non-compliance with European directives. 

Finally we are told that a question will arise in the case as to the nature of British Nuclear Fuels plc. In form it is a Company incorporated under English Company Law and, in no stronger or no weaker a position than any other person alleged to have committed or to be committing a Tort. At the same time all the shares in the Company are held by or on behalf of the United Kingdom through Secretaries of State. It was established for the purposes of the United Kingdoms Atomic Energy Act 1971 and is the holder of a site licence under the United Kingdom Nuclear Installations Act, 1965. The Plaintiffs say that it is in effect a State Authority or what community Lawyers refer to as an "emanation of the State". British Nuclear Fuels denies that this is so. This is one of the matters which may have to be decided at the trial of the Action. It cannot therefore go to the question of whether the Irish Courts have jurisdiction to deal with the matter or not. However it may have far reaching effects on the case in that it may raise the question of whether the Plaintiffs' can invoke the doctrine of "direct effect" against British Nuclear Fuels. 

CONCLUSION 

From the foregoing discussion it is clear that the present case raises, or may raise, difficult questions of far ranging significance. Certainly the questions are too complex and difficult to be disposed of, in limine, on a Motion to dismiss for want of jurisdiction. Rather should they be left to the trial Judge to decide after full debate. I should not like anything said by me on this preliminary issue to inhibit the trial Judge in any way in his approach to the case. 

Again the relief, if any, to which the Plaintiffs may be entitled and the form of such relief are matters for the trial Judge after he has heard the case. 

Under these circumstances I would dismiss the Appeal on the Motion and confirm the Order of O'Hanlon J.