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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> Wicklow County Council v. Fenton [2002] IEHC 66 (14 June 2002) URL: http://www.bailii.org/ie/cases/IEHC/2002/66.html Cite as: [2002] IEHC 66

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THE HIGH COURT

2002 No. 25 MCA

IN THE MATTER OF SECTION 57 AND SECTION 58 OF THE WASTE MANAGEMENT ACT 1996 AND

IN THE MATTER OF AN APPLICATION BY THE COUNTY COUNCIL OF THE COUNTY OF WICKLOW

BETWEEN

THE COUNTY COUNCIL OF THE COUNTY OF WICKLOW

APPLICANT

AND

CLIFFORD FENTON

SWALCLIFFE LTD. TRADING AS DUBLIN WASTE

LOUIS MORIARTY AND EILEEN MORIARTY

RESPONDENTS

AND

BLACKROCK CLINIC

FIRST THIRD PARTY

AND

MATER MISERICORIDIAE PUBLIC HOSPITAL

SECOND THIRD PARTY

JUDGMENT of O’Sullivan J. delivered 14th of June 2002.

The Parties

1.      The applicant is the Statutory Authority charged with waste management and control functions under the Waste Management Act 1996 (the 1996 Act) for the County of Wicklow.

2.      The first respondent is the owner of land in County Wicklow upon which the applicant alleges the second respondent, a waste collection company, or its agents, unlawfully dumped waste material including hazardous waste material some of which includes hazardous waste material collected from the first and second third parties. The third and fourth respondents are directors of the second.

The proceedings

3.      The proceedings were commenced by originating Notice of Motion on the 14th of February 2002. In them the applicant claims reliefs as against the second third and fourth respondents (“the Dublin Waste respondents”) pursuant to Section 58 of the Act of 1996 requiring them to take such steps as may be directed by the Court to mitigate or remedy the pollution effects of the aforesaid alleged dumping and to put in place ongoing monitoring examination and inspection systems following such remedy. There is also a claim that the respondent’s defray all the applicants costs and expenses incurred in the management of the relevant lands.

4.      On the 28th of February 2002 the Dublin Waste respondents issued a Motion seeking to have the proceedings wholly set aside on the basis that they should have been commenced by way of special summons. On the 11th of March 2002 Kelly J. declined to set aside the proceedings in a considered ex tempore judgment of that date. I will return at a later point to refer more fully to this judgment.

5.      Having failed to secure a knockout blow to the proceedings the management waste respondents next applied to McKechnie J. on the 29th of April 2002 for liberty to issue and serve third party notices upon the first and second third parties and this liberty was duly given on that date. No directions were given as to the manner or time of trial.

6.      On this application I am dealing with an application by both third parties for an order setting aside the orders of McKechnie J. on the basis that third party procedure is not available to the respondents in an application under Sections 57 and 58 of the 1996 Act at all; that it should not in any event be made available in the present case; and, very much as a subsidiary alternative, if it is, the third parties seek orders directing that the trial of the issues affecting them should be postponed until after the main proceedings have been decided.

Preliminary point

7.      In the course of the application before Kelly J. an argument was made to the effect that the applicant had deprived the respondents of the opportunity of seeking to join third parties in the instant proceedings by commencing them by motion. In dealing with this submission my learned colleague, according to Counsel's note, said

“I am satisfied that the respondents are not in any way prejudiced in this regard. They have the same entitlement to join other parties to proceedings commenced by way of Motion as they have in proceedings commenced by way of summons”.

8.      It is accepted by Counsel on this application that Kelly J. did not determine whether the Dublin Waste respondents actually do or do not have such an entitlement in the instant proceedings but rather that such an entitlement if it exists is not removed by reason of the fact that the proceedings were commenced by motion rather than by summons. The point before me has not, therefore, been decided. Insofar as my learned colleague decided as recited above I respectfully agree with that decision.

Submissions of third parties

9.      These are accepted by their respective Counsel to be virtually the same and accordingly I will deal with them together.

The primary point made is that the relief being sought against the Dublin Waste respondents is an order that these respondents carry out certain remedial works and put in place monitoring procedures and that the Dublin Waste respondents cannot get an order from any court directing the third parties to carry out these procedures and put in place those systems. The orders will be orders in personam: accordingly, the third party procedure is in appropriate and should be set aside;

The procedure under Section 58 of the 1996 Act does not allow for the full range of pleadings and counter pleadings necessarily available in an issue between a defendant and a third party: on the contrary it is confined to an application to satisfy the Court that another person has caused environmental pollution in the way defined. Furthermore it is a self contained remedy and should be strictly construed as such by analogy with statutory planning injunctions and the Courts’ interpretation of the statutory provisions authorising same. A third party, on the other hand, is entitled to full pleadings and counter pleadings which are not contemplated by Section 58.

The present application for liberty to issue third party notices was firmly based on the allegation that there was a breach by the third party of an express or implied term that the third parties would not mix hazardous waste with the non hazardous waste which the Dublin Waste respondents agreed to collect from them. This being the case the third party notices were clearly founded on Order 16 Rule 1 (1) (a) of the Rules of the Superior Courts and thereby limited to a claim for contribution or indemnity. In The Board of Governors of St. Lawrence's Hospital -v- Hugh Staunton (1990:2 I.R.31: at page 36) the Supreme Court, per Finlay C.J. made it clear that the discretion vested by these rules in the Court must be exercised subject to the statutory provisions giving rise to that jurisdiction. These statutory provisions are contained in the Civil Liability Act 1961. The defendant would have to establish that the third parties were concurrent wrongdoers under this Act, that is that they are responsible (with the defendant) to the applicant for the same damage. The claim against the Dublin Waste respondents is not for damage in this sense at all: it is for injunctive relief. Furthermore the mischief intended to be put right by Section 58 is not a wrong as defined by Section 2 (1) of the Civil Liability Act (“a tort, breach of contract or breach of trust”) but rather the causing of environmental pollution by the holding recovering or disposing of waste. The definition of wrong involves a private wrong between litigation parties (whether or not it is also a crime):

The mischief with which Section 58 is concerned is primarily a public wrong as can be seen from the fact that any person can apply for relief. The relief does not address a wrong done to a particular person but rather to the public at large. The contraventions of the Waste Management Act being dealt with under Section 58 are being dealt with as matters of public concern rather than as matters which may also involve relationships between private individuals. These matters are, accordingly, not wrongs within the meaning of the Civil Liability Act and the relevant parties cannot therefore be concurrent wrongdoers:

Section 58 provides for an urgent remedy. The procedure should be kept as simple and uncomplicated as possible: it should not be intertwined with third party proceedings especially where these will involve quite sesubparate issues of contractual liability and causation which are distinct from the issues which will arise between the applicant and the Dublin Waste respondents. In regard to the issues affecting them the third parties will be entitled to full pleadings, counter pleadings and if necessary discovery and other preliminary procedures. To permit this would run counter to the very purpose of Section 58, a self styled summary procedure. To this end these proceedings are normally dealt with by way of Affidavit evidence, and there is no provision for the exchange of written pleadings. This procedure is not suited to dealing with complex issues of fact or law which may arise in third party procedures and will arise in the present case, if they are permitted to stand;

The third party applications were made too late in the context of these “fast track” procedures. They were not made as soon as reasonably practicable which concept must be interpreted by reference to the very short time frame contemplated by Section 58 and by reference to the fact that several weeks were permitted to elapse between the institution of the proceedings and the application for third party relief.

10.      In response Counsel for the Dublin Waste respondents submitted as follows:-

It is entirely appropriate that all issues arising between all parties be tried at the same time. His client contends that an oral hearing will be necessary given the complexity and likely disputes in relation to fact. The respondents are entitled to a speedy and efficient hearing rather than to an arrangement which will produce a multiplicity of litigation;

The intention of the application for third party relief was to invoke not only Order 16 Rule 1 (1) (a) of the Rules of the Superior Courts (which refer to contribution or indemnity only and do appear to be linked to the Statutory Jurisdiction conferred on the Court by the Civil Liability Act 1961 as determined by the Supreme Court in the Staunton case), but also to sub-paragraphs (b) and especially (c) which entitle a defendant to have any question or issue raised with a third party dealt with in the original proceedings if it is substantially the same as some question or issue arising in those original proceedings.

This latter category of third party proceedings does not appear to be restricted by the parameters set out in the Civil Liability Act 1961. Indeed the 1905 Rules of the Supreme Court (Ireland) are noted in Wylie (1906 ed.) as differing in many important points from the rules in force prior to 1891. The 1905 Rules limited expressly these procedures to claims by a defendant to contribution or indemnity. Counsel submits that the expansion in the present rules indicates that a defendant can in principle obtain relief wider than purely indemnity or contribution and he further submits that the Staunton decision applies strictly only to applications under Order 16 Rule 1 (a). His intention was to apply on the wider basis set out in (b) and (c).

He relies, further, to the procedure accepted by Flood J. in Co. Meath Vocational Education Committee -v- Joyce (1997:Vol.3 I.R.402) where despite submission to the effect that a third party procedure in a planning injunction application whereby the respondent brought in the local planning authority was inappropriate, Flood J. said that he did not propose to determine this procedural point. The procedure was as far as that case was concerned an adequate vehicle to bring the issues clearly before the Court for determination on legal factual and practical grounds. He said “rules of procedure should always be regarded as the servants not the masters of Justice.” Similarly the Dublin Waste respondents argue that the rules should now serve the interests of efficient and speedy resolution of all issues arising on these proceedings between all the parties.

Conclusions

11.      In my view Section 58 contemplates a speedy and relatively simple statutory relief. The application is to be brought in a summary manner and may include interim or interlocutory relief. In Quirke (a minor) -v- Francis O’Shea (1992:ILRM:286) Finlay CJ said (page 290) with regard to considering the joinder of a third party,

“...the court is entitled to balance the disruption to the existing proceedings which could arise from such joinder against the convenience of trying all the issues in one action.”

12.      In my view the disruption to the applicant’s action by the proposed joinder of the third parties is demonstrated by the submission made in Court on behalf of the Dublin Waste respondents to the effect that the proceedings cannot go ahead during the next week or so because of the issues arising with the third parties. On the other hand the public interest in seeing the applicants’ case speedily resolved must weigh extremely heavily with the Court. If complex issues of fact arise as between the applicant and the respondents so be it: in considering the propriety of third party proceedings in the present case the Court must bear in mind the asserted complexity of factual (not to mention legal) issues which will arise in addition. It may be possible to assert on this basis alone that there never could be a situation arising in Section 58 proceedings (and a fortiori in Section 57 proceedings) where a third party procedure is appropriate: suffice to say that in the present circumstances in my view they are wholly inappropriate for the reason I have justified specified.

13.      Furthermore it seems to me that third party relief - at least in the vast majority of instances - will take the form of a money payment. The primary relief now sought against the Dublin Waste respondents is an injunction and the liability of the respondents in this regard cannot be transferred or diluted by reference to the third parties. It is true that a small part of the relief now claimed relates to the costs of doing works but this was stressed by neither side in the application before me and it is clear that the primary issues arising in the applicant’s case relate to the mitigation or remedying of the alleged environmental pollution. The respondents have submitted that these proceedings will conclude with an Order from the Court against the respondents and that will be and end of the matter. No question will arise at that stage and in these proceedings of a money payment.

14.      It is only in the event that the Dublin Waste respondents disobey any Court order that the applicant will then be entitled to carry out the works involved itself and subsequently in separate proceedings claim the cost of so doing from the respondents. The third parties acknowledge that it may be (without conceding the point) that third party procedure against them may at that point become appropriate but that is a matter for another day and not for now. To the extent that the Dublin Waste respondents now rely on an anticipated breach by them of a court order resulting in a subsequent costs claim against them by the applicant to persuade the Court now to permit them to retain the third parties in the proceedings it seems to me that I should not allow myself to be so persuaded as it would entail to some extent affording them an advantage arising out of an anticipated breach of a court order.

15.      I would further hold that as applied for the third party notice does seem to me to be based exclusively upon an alleged breach of an explicit or implied term of agreement between the Dublin Waste respondents and the proposed third parties. Counsel for the proposed third parties came to Court prepared to deal with the application on that basis and not on the wider basis advanced in reply by counsel for the Dublin Waste respondents namely on the basis that the inherent jurisdiction of the Court apart from any conferred the Civil Liability Act would entitle the Court in an appropriate case to authorise the institution of third party proceedings. This submission would entail a wider consideration of the jurisdiction of the Court than was canvassed in argument or signalled in the application leading to the order of McKechnie J. Indeed the written submissions of the Dublin Waste respondents themselves refer explicitly to Order 16 Rule 1 (a).

16.      That being the case made against them I think the third parties are entitled to a ruling on their submission that they cannot be either wrongdoers let alone concurrent wrongdoers because the definition of wrong in the Civil Liability Act (“... a tort, breach of contract or breach of trust ... whether or not the Act is also a crime ...”) clearly excludes the activities identified in Section 58 (1) (a) which might well be committed in such a way as to cause environmental pollution without constituting either a tort or a breach of contract or a breach of trust. This submission appears to me to be correct. Nor is this conclusion undermined by the fact that the relevant activities might, over and above causing environmental pollution comprise a tort, breach of contract or breach of trust because it is not as such but rather as the cause of environmental pollution that the activities are made the subject of applications under Section 58. In my view, therefore, the third parties are not concurrent wrongdoers within the meaning of the Civil Liability Act in the present case.

17.      Accordingly I propose to make an Order setting aside the third party proceedings in the present case. It appears that the order should be made under Order 16 Rule 8 (3) of the Rules of the Superior Courts.