Supreme Court dismisses Minister's challenge to pipeline consent as out of time under judicial review rules applied by analogy.

THE SUPREME COURT

[Appeal No: 349/2010]

Denham C.J.

Fennelly J.

Clarke J.

Between/

Shell E & P Ireland Limited

Plaintiff

and

Philip McGrath, James B. Philbin, Willie Corduff, Monica Muller, Brid McGarry and Peter Sweetman

Defendants/Respondents

and

The Minister for Communications, Marine and Natural Resources, Ireland and The Attorney General

Defendants to the Counter-claim/Appellants

Judgment of Mr. Justice Clarke delivered the 22nd January, 2013.

1. Introduction

1.1 The proposed construction of an on-shore gas pipeline, to connect the sub-sea wells of the Corrib gas field with an on-shore gas

terminal near Rossport in Co. Mayo, has been the subject of significant political and legal controversy for many years. Aspects of that

proposal form the backdrop to the issue which this court now has to consider. However, it is important to emphasise, at the outset,

that this court is not now concerned with the legality of that proposal still less the merits or otherwise of same and is only indirectly

concerned with some of the legal issues which have been canvassed in relation to that proposal.

1.2 In simple terms (and at the very real risk of over simplification) this court is concerned with the time limits which apply for bringing

certain types of judicial review applications before the courts and the application of those time limits to the circumstances of this

case. These proceedings have a complex procedural history, some of which will require to be considered in order to resolve the issues

which arise on this appeal. I will turn to that procedural history in due course. However, for present purposes it is sufficient to note

that certain statutory decisions were made by the first named defendant to the counter-claim ("the Minister") which decisions were in

favour of the plaintiff ("Shell") and, if valid, facilitate Shell in giving effect to the proposed pipeline. It will be necessary to refer to the

specific decisions in due course.

1.3 These proceedings commenced with Shell seeking injunctions and other relief connected with what was alleged to be a wrongful

interference by certain local residents and their supporters (including the defendants) with what Shell asserted was lawful work

carried on by it in respect of the construction of the pipeline. As part of the defence to that claim the Minister and the other State

defendants were joined as defendants to a counter-claim in which the validity of the statutory decisions concerned was challenged.

In addition damages were sought in that counterclaim against Shell on the basis that, it was argued, the statutory decisions in

question were invalid and as a consequence Shell was said to have had no legal authority for entering onto relevant lands and

carrying out relevant works.

1.4 The Minister contended in the High Court that the claim which sought to question the validity of the relevant statutory decisions

was out of time. That question was tried as a preliminary issue by the High Court (Laffoy J.) but the Minister's contentions were

rejected in a judgment delivered on the 4th March, 2010, [2010] IEHC 363. The Minister and the other State defendants have

appealed to this court against that rejection. It follows that this judgment is concerned with whether the Minister is correct in the

contention, which he unsuccessfully argued before the High Court, to the effect that it is now too late to question the validity of the

statutory measures which are sought to be challenged in the counter-claim in these proceedings. From that brief description of the

issues which arise, it is fairly clear that some account of the complex procedural history of these proceedings is necessary in order to

understand the precise issues which arise on this appeal. I, therefore, turn to that procedural history.

2. Procedural History

2.1 Shell issued proceedings against the six named defendants on the 4th March, 2005 with a statement of claim being delivered on

the 18th April. Damages were sought together with various orders restraining the defendants from a variety of alleged activities in

respect of relevant lands at Rossport which had been the subject of compulsory acquisition orders ("CAOs") made by the Minister

under s.32 of the Gas Act, 1976 (as amended).

2.2 As a result of a judgment of Laffoy J. delivered on the 23rd March, 2006, [2006] 2 I.L.R.M. 299, an amended defence and

counterclaim were filed on the 30th March, 2006. In that counterclaim, damages were sought against Shell together with various

declarations designed to establish that the CAOs were invalid and of no effect, that a consent granted by the Minister under s.40 of

the Gas Act, 1976 ("the consent") was void together with various constitutional claims and claims arising under the European

Convention for the Protection of Human Rights and Fundamental Freedoms ("ECHR"). By virtue of the reliefs sought in that

counterclaim, it was, of course, necessary to join the Minister and the State defendants ("the Minister") as defendants to that

counterclaim.

2.3 The Minister filed a defence to the counterclaim on the 27th April, 2006. In that defence, amongst other things, the Minister

alleged that the defendants were guilty of laches or delay in seeking equitable relief. In addition the Minister asserted that the

defendants had failed to comply with the time limits specified in O.84 of the Rules of the Superior Courts in seeking to challenge the

validity of the CAOs and the consent. It should also be noted that Shell's claim against the fourth and sixth named defendants was

struck out by Laffoy J. for want of prosecution on the 28th September, 2006.

2.4 On the 18th April, 2007 Laffoy J. granted an application brought by Shell in which leave was sought under O.26, r.1 of the Rules

of the Superior Courts, to discontinue the proceedings against the remaining defendants. However, the counterclaim remained in

being. It is clear, therefore, that from early 2007 onwards the only remaining issues which arose in these proceedings were those

which arose on the counterclaim which, as has been pointed out, involves claims by the defendants against both the Minister and

Shell in which the validity of both the CAOs and the consent were challenged and in which damages was sought against Shell.

2.5 Thereafter Laffoy J. directed (by order of the 23rd April, 2007) that the public law issues arising on the counterclaim be tried as

preliminary issues between the defendants and the Minister. Those issues involved the questions raised as to the validity of both the

CAOs and the consent together with issues as to the standing of the defendants to raise the constitutional issues advanced coupled

with questions as to whether those issues were moot.

2.6 Points of claim and points of defence were, in accordance with the court's directions, filed. The Minister, in the relevant points of

defence, insofar as material to the issues which arise on this appeal, asserted that there had been delay or laches in seeking the

declarations as to invalidity of the CAOs and the consent and that there had been a failure to comply with the time limits specified in

the Rules of the Superior Courts.

2.7 On the 17th December, 2007, Laffoy J. directed that the questions concerning whether the counterclaim was out of time in

seeking to raise a challenge to the validity of the CAOs and the consent be tried first. Those matters were heard with judgment being

delivered on the 4th March 2010, [2010] IEHC 363. Against the background of that procedural history it is next necessary to turn to

the High Court judgment.

3. The High Court Judgment

3.1 Having reviewed the procedural history in some detail Laffoy J. went on, in section 8 of her judgment, to set out the issues which

then fell for decision. In so doing the trial judge identified two core issues in the following terms:-

"8.2 The first is whether, in the context of a plenary action, the provisions of Order 84, rule 21 are applicable by analogy

to the pleas contained, and the reliefs claimed, in the points of claim of the defendants, which counsel for the State

parties has identified as being, and the Court has found to be, within the scope of Order 84. Order 84, rule 21(1)

provides:-

“An application for leave to apply for judicial review shall be made promptly and in any event within three months from

the date when ground for the application first arose, or six months where the relief sought is certiorari, unless the Court

considers there is good reason for extending the period within which the application shall be made.”

8.3 The second is whether, if Order 84, rule 21 applies by analogy to those pleas and reliefs, in the context of a plenary

action, given that the defendants patently did not seek those reliefs promptly, or within three or six months, in not

seeking them until 4th November, 2005, although the consent was granted and the compulsory acquisition orders made

in the first half of 2002, whether the Court should extend the period for bringing the counterclaim? Of course, as the

question of extending time is inconsistent with their contention that Order 84, rule 21 does not apply, the defendants

have not sought an extension of time. However, the case made on their behalf was that, even if it does apply, there is

“good reason” for extending the time in accordance with the principles laid down by Costello J. in O’Donnell v. Dun

Laoghaire Corporation and subsequently approved of by the Supreme Court."

3.2 In addressing the first core issue Laffoy J. identified the starting point for any consideration as to whether O.84, r.21 of the Rules

of the Superior Courts applied by analogy as being the judgment of Costello J. in O'Donnell v. Dun Laoghaire Corporation [1991]

I.L.R.M. 301. It will be necessary to analyse O'Donnell in due course.

3.3 Laffoy J. also noted relevant jurisprudence from the United Kingdom commencing with the decision of the House of Lords in O'Reilly

v. Mackman [1983] 2 A.C. 237 and, perhaps more importantly from the perspective of the case made by the defendants, including

the subsequent decision of the House of Lords in Wandsworth L.B.C. v. Winder [1985] 1 A.C. 461. Laffoy J. also noted those

occasions when both O'Donnell and Wandsworth had been the subject of judicial comment in this Court.

3.4 On the basis of that analysis Laffoy J. set out, in section 15 of her judgment, her conclusions on the question of whether O.84,

r.21 applied by analogy. The trial judge was of the opinion that this case was distinguishable from O'Donnell, as these proceedings

involve circumstances where the parties had been initially drawn into the action as defendants sued by a private body, whereas

O'Donnell involved circumstances wherein the affected party had initiated the proceedings against a public body.

3.5 The trial judge also considered the facts and principles enunciated by the House of Lords in Wandsworth. While suggesting that

the position of the defendants in these proceedings differed from that of the defendant in the Wandsworth, Laffoy J. was of the

opinion that the defendants’ position in this case, “while disclosing a more complex procedural matrix, is more compelling on the facts

than the position of the defendant in the Wandsworth case.”

3.6 Importantly, at section 15.7 of her judgment, Laffoy J. stated:-

“In the absence of an express statutory provision, which overrides the normal limitation period relevant to the cause of

action involved in the contest between the defendants and the plaintiff, there is no legal basis on which this Court can

curtail the entitlement of the defendants to defend their private law rights and, if necessary, enforce them or seek a

remedy for breach thereof, on the ground that they have not mounted a challenge to the decisions and instruments on

which the plaintiff relies to establish the lawfulness of its actions and conduct within the time limited in Order 84, rule

21. The fact that the defendants are no longer defending the plaintiff’s claim, the plaintiff having discontinued, but are

pursuing a counterclaim against the plaintiff, in my view, is irrelevant. The issues which remain between the defendants

and the plaintiff are being litigated because of the actions of the plaintiff, and the course adopted by the plaintiff in

prosecuting these proceedings in reliance on the contended for validity of the consent and the compulsory acquisition

orders. The outcome of the defendants’ historic claim and of the inquiry as to damages all turns on whether the consent

and the compulsory acquisition orders are valid.”

3.7 The trial judge acknowledged that it was legitimate for the legislature to impose a time limit on a prospective litigant although she

suggested that any time limit imposed must be compatible with the unenumerated right to litigate contained in Article 40.3 of the

Constitution. Laffoy J. held that no such limitation had been imposed by the legislature in respect of challenges to the CAOs and the

consent as the time limits laid down in O.84, r.21 were not statutory in nature. In the absence of a statutory provision, the trial judge

held that the defendants were merely obliged to act within a reasonable time, which they had done by responding to Shell's

statement of claim within five months. It should, in passing, be noted that the trial judge did accept that the substance of the claim

made by the defendants in the counterclaim, although formulated as claims for declaratory relief, amounted to, or were intended to

have the same effect as, an application for an order quashing the CAOs and the consent.

3.8 Having concluded that O.84, r.21 did not apply by analogy it was, of course, unnecessary for Laffoy J., strictly speaking, to

consider what the position would have been on the second core question had she decided otherwise. As noted by the trial judge it

was clear that the challenge to the CAOs and the consent was commenced well outside the time provided for in the rules. However,

the rules do permit the court to extend time in an appropriate case. Laffoy J. went on to consider, lest she be wrong on the issue of

principle, whether it would have been appropriate to extend time in the event that the time limits provided for in O.84, r.21 did apply

by analogy.

3.9 In that regard Laffoy J. concluded that it would not be appropriate to extend time. Her reasoning in that regard can be found in

section 17 of her judgment. The trial judge referred again to the decision in O'Donnell and identified the appropriate test as being

“whether the defendants have established reasons which both explain the delay and afford a justifiable excuse for the delay”.

However, it was suggested that a “more rigorous standard than applied in the O'Donnell case” should be applied in the instant case

due to the scale of the other interests affected, being the enormous potential consequences for Shell's major infrastructural project.

3.10 The judgment carefully addresses each of the reasons put forward by the defendants for their initial inactivity. The defendants

had adopted what was described as a “wait and see” approach, believing that the most appropriate manner of preventing the project

proceeding was through challenging the grant of planning permission for the terminal. However, this approach neglected to take into

account the fact that a substantial amount of work and expense would have already been carried out at that stage in the

construction of the adjoining pipeline. Such an approach could not be a justifiable excuse, bearing in mind the scale of the

infrastructural project and the associated expenditure.

3.11 The defendants also sought to rely on their limited means and ignorance of public law remedies as a justification for the delay in

their actions. Again, these contentions were rejected, the trial judge citing the fact that the defendants had, as far back as 2002,

sought to challenge the power of the Minister to make the CAOs.

3.12 Finally, the second named defendant ("Mr. Philbin") also sought to excuse the delay on his part on the basis of the stress and

trauma he suffered while committed to prison for contempt of court in July 2005. However, during that time, Mr. Philbin was

represented by two firms of solicitors and a defence and counterclaim were delivered on his behalf. As a result, on that basis Laffoy J.

was not satisfied that any stress or trauma could provide a justifiable excuse for his inaction.

3.13 Against that judgment the Minister has appealed to this Court. It is of some importance to note that no cross appeal was

entered in respect of the finding of Laffoy J. that, if the time limit provided for in the rules applies by analogy, it would not, in all the

circumstances of the case, be appropriate to extend time. It follows, therefore, that if the time limits are held to apply by analogy the

appeal must succeed on the basis that there would, in that eventuality, be a clear breach of those time limits and no justification, as

found by the trial judge, for extending time. Against that background it is necessary to turn to the Minister's appeal.

4. The Minister's Appeal

4.1 In substance the Minister seeks to stand over that part of the reasoning of Laffoy J. in which the trial judge held that, although

formulated as claims for declaratory relief in a plenary action, the reliefs sought in paras. 1 – 5 of the prayer of the points of claim

were, in essence, claims for reliefs which were intended to have the same effect as orders quashing the CAOs and the consent.

4.2 However, the Minister sought to overturn the decision of the trial judge to the effect that O.84, r.21 does not apply by analogy.

The basis for that appeal is set out both in the notice of appeal and in the written submissions filed on behalf of the Minister. In those

circumstances it is appropriate to set out in brief terms the argument advanced on behalf of the Minister.

5. The Minister's Case

5.1 In essence, counsel for the Minister contends that the trial judge erred on two separate grounds in failing to find that the delays

on the part of the defendants in challenging the validity of the CAOs and the consent disentitled them to the declaratory reliefs

sought. First, the High Court was said to be wrong in failing to find that Order 84 Rule 21 of the Rules of the Superior Courts applied

by analogy to the defendants' counterclaim. Second, it was asserted that the trial judge had failed to properly consider,

independently of whether O.84 might be said to apply by analogy, whether the defendants were guilty of laches such that their claim

could not now be permitted to proceed.

5.2 At the hearing, counsel for the Minister sought to rely principally on two arguments in support of the contention that Order 84

Rule 21(1) did apply by analogy. It was submitted that the trial judge had erred in distinguishing O'Donnell. The trial judge held that

the principles enunciated in O'Donnell only apply in circumstances where challenges to measures governed by public law arise in

proceedings initiated by a challenger but not in circumstances where such a challenge arises in the context of a defence and

counterclaim to an action brought by another private party. It was argued that there was no reason for making a distinction between

a party bringing an action and a party defending one, particularly in circumstances where a counterclaim is brought by the defendant

and the plaintiff’s action has been discontinued. Therefore, it was said, the O'Donnell principles should apply in the same manner to

the defendants here as they would to a plaintiff in any other public law matter.

5.3 In drawing this distinction between those initiating and those defending an action, it was submitted that an incorrect or overbroad

application was made of the decision in Wandsworth. The Minister sought to distinguish Wandsworth on a number of bases. First, it

was submitted that the issue in Wandsworth was a private law matter between the defendant and the plaintiff municipal body in

question whereas, in the instant case, the remaining counterclaim was argued to involve purely a public law issue. Second, it was

suggested that the defendants are here bringing a separate and distinct claim against a third party. Although the defendant in

Wandsworth did also bring a counterclaim, that counterclaim was against the plaintiff and, it was suggested, added relatively little to

the issues in the proceedings other than repeat what was contained in the defence. Third, in Wandsworth, it was said that no

consideration was given to the issue of time factors or delay, an issue which is at the heart of the present appeal.

5.4 In the alternative if Wandsworth is not distinguishable and the principles contained therein did apply to the facts of the present

case, it was argued that it was not open to the trial judge to disregard the time limits contained in Order 84 Rule 21. By failing to

apply any time restriction, the trial judge gave, it was said, an overbroad and unintended application to Wandsworth.

5.5 The Minister's second contention is that Laffoy J. failed to consider the doctrine of laches as an independent ground for dismissing

the relevant aspects of the counterclaim which issue, it was said, arose independent of her findings in relation to analogical

application of Order 84 Rule 21. Although the explanations for the defendants’ delay were considered in the context of the

applicability of that Order, these explanations should, it was argued, also have been considered in the context of laches.

5.6 Against those arguments it is next necessary to turn to the position adopted on behalf of the defendants.

6. The Defendants' Argument

6.1 Counsel for the defendants submit that the trial judge was correct in finding that Order 84 is not applicable by analogy in

circumstances where the party claiming declaratory relief did not initiate the action. This submission was based on what was said to

be the “paramount principle”, identified in Wandsworth, that a defendant has a right to defend any action brought against them and

can only be excluded from so doing by clear words from the legislature. No legislation, either primary or secondary, has been

promulgated in this jurisdiction to restrict that right of a defendant and, as a result, the defendants in these proceedings cannot, it

was said, be precluded from defending the action brought against them by Shell. It was also denied that any significance attached to

the fact that the counterclaim was the sole remaining issue in the proceedings, as the counterclaim had to be understood in the

context of being an immediate product of the defence.

6.2 It was also contended that the factual circumstances of this case were unique in that the action began as a dispute between

two private parties into which the Minister was then joined. In that context the court was asked to consider the effect of a number

of English authorities, particularly Wandsworth. The speech of Lord Fraser in Wandsworth was relied on as an authority for the

proposition that a defence to plenary proceedings was distinct and incomparable to an application for judicial review, for in judicial

review proceedings all matters are at the discretion of judge; no right or entitlement can be said to exist. On that basis it was argued

that the failure to bring to judicial review proceedings does not operate as a complete bar to defending a plenary action in which

reliance is placed on a measure which could have been, but was not, the subject of a timely judicial review challenge. It was noted

that, in Wandsworth, the defendant was granted the declaratory reliefs sought even though his previous judicial review application

was refused for being out of time. Counsel also referred to the recent decision of the UK Supreme Court in Manchester City Council v

Pinnock [2011] 2 AC 104, where the continued application of the Wandsworth principles were said to have been upheld. Counsel

sought to restrict the application of the O'Donnell principles to instances where there was a deliberate attempt to circumvent the

requirements of judicial review. This case, in his submission, was not such an attempt. Finally, in respect of the laches argument, it

was contended that a party must establish some prejudice in addition to mere delay before a Court will exercise its discretion. No

evidence of specific prejudice had, it was said, been adduced in this case and therefore, it was not open to the Minister to rely on

that doctrine.

6.3 The principal net issue on this appeal is, therefore, as to whether the Minister's argument or the defendants' response is correct

as to the application of O.84, r.21 by analogy. If the rule does apply by analogy then it is clear that the appeal must succeed. If the

rule does not apply by analogy then it is clear that, subject to the laches question, the appeal must fail. Clearly if the Minister

succeeds on the issue of the application of O.84 by analogy then it is unnecessary to consider the question of laches. However, if the

Minister fails on the principal issue then it is necessary to consider whether, nonetheless, the defendants are precluded by laches

from proceeding with a challenge in their counterclaim to the CAOs and the consent. I now turn to a consideration of the issues

raised in respect of Order 84.

7. Discussion – Order 84

7.1 A starting point for any discussion on the law in this area has to be the judgment of Costello J. in O'Donnell. It is said on behalf of

the defendants that there has been no express approval by this court of those aspects of that decision which concern the seeking of

judicial review remedies in plenary proceedings. There have, undoubtedly, been some references to O'Donnell in judgments of this

court.

7.2 In Slattery’s Ltd v Commissioner for Valuation [2001] 4 I.R. 91, Keane C.J, approved to the following passage of Costello J. in

O’Donnell (at p. 315) as a “correct statement of the law”:-

"The phrase 'good reasons' is one of wide import which it would be futile to attempt to define precisely. However, in

considering whether or not there are good reasons for extending the time I think it is clear that the test must be an

objective one and the court should not extend the time merely because an aggrieved plaintiff believed that he or she

was justified in delaying the institution of proceedings. What the plaintiff has to show (and I think the onus under O. 84,

r. 21 is on the plaintiff) is that there are reasons which both explain the delay and afford a justifiable excuse for the

delay. There may be cases, for example, where third parties have acquired rights under an administrative decision which

is later challenged in a delayed action. Although the aggrieved plaintiff may be able to establish a reasonable explanation

for the delay, the court might well conclude that this explanation did not afford a good reason for extending the time

because to do so would interfere unfairly with the acquired rights (State (Cussen) v. Brennan [1981] I.R. 181)."

However, it is clear that the approval of this court to be found in Slattery's Ltd. related to an analysis of the "good reason" test

for extension of time.

7.3 The “good reason” test was again approved by this Court in Dekra Eireann Teo v Minister for the Environment [2003] 2 I.R. 270

in the context of Order 84A Rule 4. Reference has also been made to this test in De Roiste v. Minister for Defence [2001] 1 I.R. 190,

in B.T.F. v Director of Public Prosecutions [2005] 2 I.R. 559 and in In the matter of Article 26 of the Constitution and In the Matter of

ss. 5 and 10 of the Illegal Immigrants (Trafficking) Bill, 1999 [2000] 2 I.R. 360.

7.4 Another aspect of O'Donnell has also been approved by this Court in Dublin City Council v Williams [2010] 1 I.R. 801 where it was

confirmed that the “exclusivity principle” as set out by the House of Lords in O’Reilly v Mackman does not apply in this jurisdiction. In

that case, this court ruled that the legality of a fixed refuse charge could not be raised in the District Court by way of defence to a

claim for a civil debt of a public nature. It should, of course, be noted that Dublin City Council v. Williams concerned a case in the

District Court which court does not have a judicial review or general declaratory jurisdiction. It would not have been open to the

District Court to entertain proceedings which sought to challenge, whether brought by judicial review or by seeking declarations, the

public law measures which were involved in that case. Different considerations apply to proceedings in the High Court which, of

course, has a full judicial review jurisdiction and a wide declaratory jurisdiction as well. Where proceedings are brought in the High

Court the only issue is one of the form of the proceedings rather than the jurisdiction of the court to entertain proceedings of that

type in the first place.

7.5 Most importantly, in Murphy & Ors v Justice Flood and Ors [2010] 3 I.R. 136, Fennelly J referred to O'Donnell in the context of

alleged delay in bringing judicial review of the interim reports of the Planning Tribunal. At p. 221, he stated:-

“Unlike the cases of planning and immigration decisions, there is no statutory provision making judicial review the

exclusive means of challenging Tribunal decisions of the sort at issue here. The decision in O'Reilly v. Mackman [1983] 2

A.C. 237 has never been applied in Irish law. This is not to say that the judicial review time limit can be circumvented by

resort to plenary action. O'Donnell v. Corporation of Dun Laoghaire [1991] I.L.R.M. 301 represents long established

authority to that effect.”

Fennelly J. had previously cited O'Donnell as authority for this principle in Blanchfield v Harnett [2002] 3 I.R. 207.

7.6 Whether or not those references, properly analysed, can be said to amount to an express approval of the relevant principles

enunciated in O'Donnell might be debateable. Certainly the dictum of Fennelly J. in Murphy & ors v. Flood seems to approve of

O'Donnell as authority for the proposition that judicial review time limits cannot be circumvented by resort to plenary action. However,

it seems to me that O'Donnell was rightly decided in any event. It would make a nonsense of the system of judicial review if a party

could by-pass any obligations which arise in that system (such as time limits and the need to seek leave) simply by issuing plenary

proceedings which, in substance, whatever about form, sought the same relief or the same substantive ends. What would be the

point of courts considering applications for leave or considering applications to extend time if a party could simply by-pass that whole

process by issuing a plenary summons?

7.7 There are, however, further issues which need to be considered. First, there is the rationale of the trial judge which drew on the

point (correct so far as it goes) that the time limits which arise in respect of most judicial review applications (there are some

exceptions) are to be found only in the rules of court and not in statute and do not expressly refer to the position of a defendant who

seeks to challenge a public law measure relied on by the plaintiff either as a matter of defence or as part of a counterclaim. The sort

of primary statutory time limits which apply in respect of judicial review in, for example, the fields of planning and environmental law

together with immigration law, have no correspondence in a case such as this. It is true, therefore, that the time limits which are said

by the Minister to apply by analogy in this case are time limits which are to be found in the rules of court rather than in any statute

and in those rules are expressed to refer to claims rather than defences or counterclaims. It will be necessary to consider whether

those distinctions make any difference.

7.8 However, first it is appropriate to consider the United Kingdom jurisprudence on which counsel for the defendants placed reliance.

The extent to which that jurisprudence is consistent or compatible with the regime which applies in this jurisdiction may be a matter

of some legitimate debate. It does need to be noted that the starting point of the United Kingdom jurisprudence is to be found in

O'Reilly v. Mackman. The House of Lords in that case took a different position to that adopted by Costello J. in O'Donnell and held

that it was not open to a person, in plenary proceedings, to bring, by means of seeking declarations, the sort of challenge ordinarily

brought in judicial review proceedings. There was, thus, from the beginning a divergence between the Irish and United Kingdom

approaches. In Ireland it was accepted that challenges to the validity of public law measures could be brought by declaratory plenary

proceedings but that when so brought the procedural limitations imposed by the rules of court on judicial review applications applied

by analogy. In the United Kingdom the initial position was that no such challenge could be brought by plenary proceedings at all. The

decision in Wandsworth, which, of course, occurred only two years after O'Reilly v. Mackman, must be seen against the background

of the original position adopted in the United Kingdom which prevented parties from raising questions as to the validity of public

measures in plenary proceedings. Perhaps not surprisingly, but having regard to the position adopted in O'Reilly v. Mackman, it was

considered necessary to afford rights to defendants to, at least in appropriate circumstances, challenge the validity of measures

sought to be invoked against them in the same proceedings in which the invocation of the measure concerned was sought to be

enforced.

7.9 It may well be that the subsequent evolution of the jurisprudence in the United Kingdom has to be viewed against the background

of the initial position adopted by the House of Lords in O'Reilly v. Mackman which, as has been pointed out, differed significantly from

the initial position adopted in this jurisdiction. For reasons which I hope will become apparent it does not seem to me to be necessary,

for the purposes of resolving this appeal, to reach any concluded view on the precise application of that United Kingdom jurisprudence

in Ireland. However, to the extent which it seems appropriate and necessary for the purposes of resolving this appeal, I have

considered the underlying principles which guide that jurisprudence.

7.10 In addition it may well be that there is an underlying principle behind both the jurisprudence in this jurisdiction and that of the

United Kingdom. It may well be that a party should not be able to gain an unfair advantage in litigation by means of adopting a

particular procedure as the vehicle for that party's claim. There are, of course, sound reasons of policy why there are different types

of procedures for different types of cases. Sometimes the reasons why different procedures are followed in different types of cases

stem from underlying differences in the types of cases concerned which warrant a different procedural approach. It may well be that

a party who seeks to avoid the legitimate procedural requirements applicable to a particular type of case by deploying the procedural

device of bringing proceedings in an unusual or atypical way (even if such a process is not prohibited) may find that the courts are

understandably reluctant to allow such an advantage to be taken. However, it is again, in my view, unnecessary to reach any

concluded views on any such underlying principle so as to be able to resolve this case.

7.11 The underlying reason why the rules of court impose a relatively short timeframe in which challenges to public law measures

should be brought is because of the desirability of bringing finality to questions concerning the validity of such measures within a

relatively short timeframe. At least at the level of broad generality there is a significant public interest advantage in early certainty as

to the validity or otherwise of such public law measures. People are entitled to order their affairs on the basis that a measure,

apparently valid on its face, can be relied on. That entitlement applies just as much to public authorities. The underlying rationale for

short timeframes within which judicial review proceedings can be brought is, therefore, clear and of significant weight. By permitting

time to be extended the rules do, of course, recognise that there may be circumstances where, on the facts of an individual case, a

departure from the strict application on whatever timescale might be provided is warranted. The rules do not purport to impose an

absolute time period.

7.12 Against that background it does need to be noted that there may well be circumstances in which a defendant, faced with

proceedings brought placing reliance on a public law measure, may be justified, in those proceedings, in challenging the validity of the

measure concerned even though that party might be, strictly speaking, out of time in maintaining a direct challenge to the relevant

measure. However, it does not seem to me that such questions really arise in these proceedings as they are now constituted.

7.13 As has been pointed out, all that remains of these proceedings is a counterclaim in which it is sought to challenge the validity of

measures on which reliance is no longer sought to be placed and in which the purported invalidity of those measures is relied on as

the basis for a claim in damages. If either Shell or the Minister wished to place continuing reliance on the validity of those measures

as a means for pursuing any claim against the defendants then questions such as those which arose in Wandsworth might well need

to be considered. However, that is not the case here. So far as the damages claim is concerned the only issue of validity which

remains concerns the actions taken by Shell at a time when those measures had been adopted in the sense that the CAOs were in

place and the consent had been granted, where the measures concerned had not been the subject of any challenge and where the

period within which any such challenge should ordinarily have been brought had long since expired. It seems to me that such analysis

places what remains of these proceedings firmly into the same category as the proceedings which were under consideration in

O'Donnell rather than those which were under consideration in Wandsworth. What remains of these proceedings is a challenge to a

public law measure designed to underlie a claim for damages rather than a defence to proceedings in which reliance is placed on the

measure to maintain a claim against the challenger.

7.14 In that context it does not seem to me that the fact that the proceeding may, when initiated, have had a very different

character alters the situation which now pertains. If, on a proper application of the law to the facts, a plaintiff would not be

permitted to initiate an out of time challenge to measures which are relied on by a defendant as justifying actions taken, then it does

not seem to me that any proper analysis of the situation ought to lead to any different conclusion in the event that a claim for

damages is mounted as a counterclaim, but based on a challenge to the relevant measures which in all other respects is identical.

That situation must, it seems to me, be so, at the very least, where the issues which arise in the original claim are now no longer

before the court.

7.15 It is for that reason that it seems to me that the wider issues, as to the extent to which the Wandsworth jurisprudence applies

in this jurisdiction and the extent to which it may be necessary to analyse whether there has been an attempt to take unfair

advantage of a particular form of procedure, do not arise on the facts of this case. However it may have arisen, the simple fact

remains that all that is left in these proceedings is a claim for damages which has, at its heart, a challenge to the validity of the CAOs

and the consent brought long outside the time provided for in the rules in that regard and in circumstances where the damages claim

requires a finding which renders unlawful actions taken on foot of those measure at a time when they were not subject to timely

challenge. In addition it must be noted that, even as the proceedings were originally constituted, the counterclaim went beyond

seeking a declaration of invalidity simply as part of a defence but extended to seeking to establish the invalidity of the relevant

measures as a basis for pursuing a claim for damages.

7.16 Whatever may be the application of Wandsworth and the cases which follow on from it in this jurisdiction (and for the reasons

already given it does not seem to me to be necessary to reach a definitive view on that question save to note that that

jurisprudence stems in part from O'Reilly v. Mackman which does not form part of the jurisprudence in this jurisdiction) it seems to me

that such jurisprudence can have no application which would defeat the underlying rationale adopted by the courts in this jurisdiction

in O'Donnell. I am, therefore, satisfied that O'Donnell represents the law in this jurisdiction. In those circumstances a party cannot

circumvent judicial review requirements by the device of commencing plenary proceedings or by mounting a counterclaim in such

proceedings.

7.17 I would leave to another case the question as to what is to happen where a defendant is sued on the basis of a measure which

that defendant wishes to challenge. It may be that the proper approach in such cases is to have regard, in the context of whether it

would be appropriate to extend time, to the fact that, to the extent that it may be material, the defendant concerned might only

have had a real interest or concern with the relevant measure when sued. In addition it is important to emphasise that the essential

nature of the litigation with which the House of Lords was concerned in Wandsworth was a private law claim brought by the relevant

local authority in its capacity as a landlord. In that capacity the local authority sued for rent. It was the measure fixing the increased

rent claimed which the defendant sought to challenge. Whatever may be the appropriate approach to be taken in such a case it

seems to me, for the reasons already set out, that such considerations have no application to a case such as this where the

challenge to the public law measure concerned is the only matter remaining in the proceedings and, in any event, where that

challenge is wider in scope than would be required simply to defend the proceedings originally maintained. For those reasons it seems

to me that those aspects of the defendants' case which placed reliance on Wandsworth must fail.

7.18 It follows that the only issue remaining is the principal point on which the trial judge based her reasoning. Does the fact that the

time limits which are in issue stem from provisions in the rules which do not make express reference either to matters raised in a

defence or by counterclaim, rather than direct and express statutory requirements, alter the situation?

7.19 In this regard it seems to me that it is necessary to return to the underlying basis for the requirement that there be timely

challenges to public law measures in the first place. At least part of the reasoning behind such time limits is, as has been pointed out,

the need to bring certainty to questions as to the validity or otherwise of such measures so that those who place reliance on them

can do so without fear of late challenges. If, as the trial judge found, the absence of an express and directly applicable statutory

time limit meant that the defendants could not be debarred from maintaining their counterclaim in these proceedings, then it is hard to

see how that same point ought not have led to a different decision in O'Donnell. First there was no express statutory time limit which

debarred the proceedings in O'Donnell. The only barrier was that to be found in the rules and that time limit, as was noted by Costello

J., was held only to apply by analogy. If, therefore, the reasoning of the trial judge in respect of the need for an express statutory

requirement is correct, then it seems to me to follow that O'Donnell would have to be held to have been wrongly decided.

7.20 The rules of court are, of course, a form of secondary legislation. They are made with the authority of the Oireachtas in the form

of the enabling provisions of the Courts of Justice Acts 1924-36 and the Courts (Supplemental Provisions) Act 1961 ("the Courts

Acts"). That does not, of course, give the rules-making authority carte blanche. It is possible that an argument might be made that

measures adopted in the rules go beyond the legitimate delegated powers of rules-making authorities. It might also be, as the trial

judge correctly pointed out, that limitations, whether to be found in legislation or in the rules, which affect the ability of a party to

maintain or defend proceedings in a reasonable way, might amount to a breach of the rights of such party either to access to the

court or to the fair conduct of proceedings (as to the distinction between which see Farrell v. Bank of Ireland [2012] IESC 42).

7.21 However, the Oireachtas has conferred on the rule-making authority power to make rules of court. Those rules have, unless

declared invalid, the force of law. If it is suggested that a time limit for bringing judicial review proceedings which is to be found only

in rules of court is of a different status to a time limit to be found in legislation then such an argument really could only have validity if

it were to bring into question the power of the rule-making authorities to introduce those time limits in the first place. If the

introduction of time limits for bringing judicial review is intra vires the rule-making authority then it is a legitimate exercise of

secondary legislation and amounts to a legal barrier to the bringing of such proceedings outside such time limits subject, of course, to

the power contained in the rules themselves to extend time. The fact that such a legal power is to be found in secondary as opposed

to primary legislation does not seem to me to affect its status. If it is said that the rule-making authorities do not have the power to

impose such time limits then it is hard to see how that point would not apply to all judicial review cases save those where there is an

express time limit to be found in primary legislation. There was, of course, no challenge to the validity of the rules of court, which

provide for time limits in respect of judicial review proceedings, before this court. The court must proceed therefore, on the basis that

the rules in relation to judicial review time limits are a valid exercise of the power delegated to the rule-making authorities by the

Oireachtas.

7.22 On that basis the rules have the force of law and have the same status as time limits to be found in primary legislation except,

of course, that the rule-making authorities do not have the power to depart from those time limits which are specified in primary

legislation. It is, of course, the case that the type of legislation which has been adopted in recent times in the planning and

immigration fields, for example, not only imposes a statutory time limit for the commencement of proceedings but also prevents any

question as to the validity of relevant measures being raised save by judicial review. There is no similar provision in respect of

challenges outside those fields which have been the subject of specific legislation. No such restriction applies to a challenge in

respect of measures such as the CAOs and the consent which are at the heart of these proceedings. However, it remains the case

that a judicial review challenge to those measures would be required, as a matter of law, to be taken within the time limits specified in

the rules of court or in such extended time as the court might provide. It seems to me to necessarily follow that permitting such a

challenge to be brought in a manner which would entirely circumvent those rules would amount to permitting rules which have the

force of law as secondary legislation to be circumvented in an inappropriate way. It seems to me to follow that a valid exercise by the

rule-making authority of its power to impose, by rule of court, time limits for the bringing of judicial review applications necessarily

implies, by analogy, that those rules are applicable to such challenges in whatever way, as a matter of procedure, the challenge

concerned may be brought.

7.23 At the relevant time when O'Donnell was decided there was no primary legislative time limit applicable in planning cases. For the

reasons already analysed I am satisfied that O'Donnell was correctly decided. It follows that the difference between rules and primary

legislation is not material. It further follows, therefore, that the rules can be taken to apply by analogy to claims which have, as their

substance, the seeking of the types of relief ordinarily obtained by judicial review even though framed in another fashion such as in

declaratory proceedings. If, therefore, a party is debarred, by reference to judicial review time limits, from maintaining declaratory

proceedings to the same end what is the logic of allowing such a party to achieve the same end by including a similar challenge in a

declaration to be found in a counterclaim. As already noted I would leave to another case, in which the point was decisive, the

question as to what the position should be where the challenge to the measure arises purely as a matter of defence or in the form of

a counterclaim which was designed simply to provide a defence by seeking to challenge the measure relied on by the plaintiff. In such

a case the precise application of the Wandsworth principles would come into full focus. However, the counterclaim in these

proceedings is not such a counterclaim. It is not directed simply to challenging the relevant measures for the purposes of providing a

defence. It is in addition directed to challenging the measures for the purposes of maintaining a claim in damages. In such

circumstances it is properly characterised, in substance, as a substantive claim rather than a defence and, for that reason, there

seems to me to be no logical reason for not applying the same strictures as to time as would apply were the defendants to be the

moving parties as plaintiffs.

7.24 I am mindful of the fact that the question of whether a claim has been brought within time must, at least in the absence of

special and unusual circumstances, be judged as of the time when the claim is brought. It is unlikely that factors occurring after the

claim has been brought could have any material effect on the question of whether the claim was in time. In that context it might be

argued that, at the time the counterclaim in these proceedings was commenced, the full claim brought by Shell remained in being. On

that basis it might be suggested that the counterclaim was legitimate and in time when first brought and that the subsequent

discontinuance or dismissal of the proceedings against the defendants could not alter that situation. If the counterclaim was only

concerned with seeking to have the relevant measures declared invalid as a matter of supporting the defence then difficult questions

under that heading might well arise, although, in the events that have happened, such a narrow counterclaim, designed only to render

the relevant measures invalid for the purposes of supporting a defence to a claim which placed reliance on those measures, would

almost certainly now be moot by virtue of the fact that the claim to which such declarations might provide a substantive defence is

no longer being pursued. In any event the questions on which I have touched concerning the application of the Wandsworth

jurisprudence in this jurisdiction might well come to the forefront in a situation where the only purpose of a counterclaim was to

provide for such a defence. However, in this case the counterclaim goes much further and represents a substantive claim in its own

right. It is in that context that it seems to me that it is appropriate to characterise the counterclaim in these proceedings as a

substantive claim rather than a defence. Characterised in that way the counterclaim was always, from the beginning, a substantive

claim and the question of whether it was in time can, for that reason, be viewed on the basis of the claim as originally formulated and

in the circumstances which then pertained. To the extent that the counterclaim simply was an aid to the defence it is now moot. To

the extent that it went further and maintained a substantive claim then it is subject to being questioned on the basis of whether it

was taken in time.

7.25 It is next necessary to turn to the distinction made by the trial judge, and relied on on behalf of the defendants on this appeal,

between proceedings involving a challenger and a public authority, on the one hand, and proceedings primarily involving, as here, two

private parties, on the other hand.

7.26 I cannot see that it makes any difference that O'Donnell involved a direct challenge to a public authority whereas the challenge

which the defendants seek to mount in this case is against both a public authority (insofar as that authority is a necessary defendant

to any claim which asserts the invalidity of an action taken by the authority concerned) and also a private entity which sought to

place reliance for the lawfulness of its actions on the validity of a measure taken by the relevant public authority. Either there is a

binding time limit in place (subject to extension by the court) or there is not. It is hard to see how there could be any justification for

requiring a person who wished simply to set aside a public measure to act within the time limits provided for in the rules for judicial

review applications (either because the proceedings were judicial review proceedings or because judicial review time limits applied by

analogy in the case of plenary proceedings) but not to apply the same time limits to a challenge which sought to go beyond seeking

to have the public law measures concerned rendered invalid by seeking to use that invalidity as a basis for claiming damages against a

party who placed reliance on the measures concerned. For the reasons already analysed it does not seem to me to make a difference

that the claim in which the challenge is brought is formulated as a counterclaim particularly where the counterclaim is not merely a

necessary part of the defence but goes further and seeks to make a substantive claim (in this case in damages) which goes beyond

the repetition of the substance of the defence.

7.27 Finally I should deal with the point raised on behalf of the defendants which sought to place reliance on the fact that judicial

review is said to be a discretionary remedy and that, as noted in some of the English jurisprudence, a discretionary remedy might be

said not to afford an appropriate protection to a defendant who is sued. For the reasons already analysed it seems to me that it is

not appropriate to consider the defendants in these proceedings as being any longer persons who are sued. The claim against them

has been dropped. The historical course of these proceedings may explain how the defendants come to be defendants and how their

claim in damages and their assertion as to invalidity of the CAOs and the consent are formulated as a counterclaim. However, that

historical account does not alter the substance of the situation which now pertains which is that the defendants are now the parties

bringing the only remaining claim extant. For that reason alone the considerations which gave rise to the aspects of the English

jurisprudence relied on seem to me not to be present in this case.

7.28 In addition, it does seem to me to be appropriate to comment that the fact that a remedy may be said to be discretionary does

not imply that the court is, in any real sense, at large as to whether to grant the remedy or not. Indeed, in that context, the term

"discretionary" may be somewhat misleading. In its proper context and as was pointed out by Denham J. in De Róiste v. Minister for

Defence [2001] 1 I.R. 190 at p.209, the term simply means that the court can take into account a range of circumstances in deciding

whether to make an order and if so what order should be made. In truth the term "discretionary" simply implies that a particular

remedy does not automatically follow from the establishment of a particular set of circumstances and that there may be other factors

which can properly be taken into account in deciding whether to grant the remedy concerned. Amongst the circumstances that might

well, on the facts of a particular case, be properly taken into account, would be the need to protect the legitimate interests of a

defendant who was sued by a party placing reliance on a public law measure which the defendant wished to challenge. That factor,

amongst any other relevant circumstances, would need to be taken into account by the court. However, having made those

observations, it seems to me that the question of the non-automatic entitlement to judicial review, as identified in the English

jurisprudence, does not arise on the facts of this case because the only remaining proceedings are ones in which the challenger to

the public law measures in question is the moving party.

7.29 In those circumstances it does not seem to me that there is any basis for distinguishing this case from O'Donnell. I am satisfied

that O'Donnell does represent the law in this jurisdiction. It seems to me that it does not matter that the form of these proceedings is

a counterclaim. The position is no different, in the events that have happened, to one in which the defendants were the moving party

and instigated a claim in damages against Shell placing reliance on a purported invalidity of the CAOs and the consent. Likewise it

seems to me that, short of declaring the time limits for judicial review applications contained within the rules as being ultra vires the

Courts Acts, there is no basis for suggesting that those time limits do not apply. The fact that the form of these proceedings is a

counterclaim in which invalidity of relevant measures is asserted and where damages are claimed based on actions taken in purported

reliance on the measures asserted to be invalid, does not seem to me to affect the application of time limits, found in the rules, by

analogy.

7.30 It is also worth observing that there is no potential for injustice in such a regime. There may well be circumstances in which a

court would consider it reasonable, in all the circumstances, for a party to have refrained from bringing judicial review proceedings

challenging the validity of a public law measure until such time as someone sought to invoke the measure concerned against the

potential plaintiff or applicant. In those circumstances it is, of course, open to the court to consider extending time precisely because

it was not reasonable to expect the person concerned to have brought the challenge until the measure was used against them,

although the court might, on the facts of any individual case, have to weigh other aspects of the general circumstances in the

balance.

7.31 However, it should be added that to say that a person, once sued, has then carte blanche in all circumstances to challenge a

measure well outside the time when an originating challenge to the measure concerned could have been brought, in circumstances

where no extension of time would be appropriate and where reliance had been placed on the measure concerned at a time when there

had been no timely challenge to its validity would, in my view, render the regime for timely challenges to public measures largely

ineffective and be apt to lead to significant injustice.

7.32 For those reasons it seems to me that the defendants are out of time to mount the challenges which they now seek to bring to

the CAOs and the request. I, therefore, respectfully disagree with the trial judge.

8. Conclusions

8.1 For those reasons I would, therefore, allow the appeal of the Minister and substitute an order dismissing the challenge to the

validity of the CAOs and the consent on the grounds that the challenges concerned are out of time by reference to the provisions of

O.84 which apply by analogy to the counterclaim in these proceedings.

8.2 I would leave to a further case in which said issues might be decisive the question of the extent, if any, to which the Wandsworth

principles and the jurisprudence of the United Kingdom courts which follows on from them, might have application in this jurisdiction.