THE HIGH COURT
			2001 No. 118 JR
BETWEEN
COLLETTE O’CONNELL
			APPLICANT
AND
THE ENVIRONMENTAL PROTECTION AGENCY
			RESPONDENT
DUNGARVAN AN ENERGY LIMITED
AND
IRELAND AND THE ATTORNEY GENERAL
			NOTICE PARTIES
JUDGMENT of Mr. Justice Herbert delivered the 5th day of July, 2001
	The Applicant in these proceedings is the First Named Notice Party in the title of the matter. Originally known as Thesio Limited, it changed its name to Dungarvan Energy Limited and the title of the proceedings were amended accordingly.  The Applicant in the proceedings, Collette O’Connell, is the Respondent in this Application to strike out her proceedings seeking Judicial Review of a decision of the Respondent.
	It was submitted on behalf of Collette O’Connell that Dungarvan Energy Limited does not have a sufficient locus standi to maintain this application.  I disagree.
	The Respondent in the Judicial Review proceedings is the Environmental Protection Agency and the matter in respect of which Orders are sought concerns the granting by the Respondent on the 3rd January, 2001 of an Integrated Pollution Control Licence under the Environmental Protection Agency Act, 1992, which licence related to the development at Dungarvan on a former Agribusiness site adjoining the Town of a one hundred megawatt Combined Cycle Gas Turbine Electricity Generating Plant for which Dungarvan Energy Limited, on the 1st September, 2000 received a Grant of Planning Permission from An Bord Pleanala, consequent upon an Appeal to that Body by Collette O’Connell from a decision of Dungarvan Urban District Council on the 28th November, 2000 granting planning permission.
	The Court was informed by Counsel for Dungarvan Energy Limited that IR£21 million has already been expended by that Company in acquiring the property, launching this project, obtaining the necessary grant of Planning Permission and the necessary Integrated Pollution Control Licence and in carrying out such site clearance works as were authorised by the Terms of the Planning Permission.  The Court was informed that time sensitive funding arrangements had been made for the construction and commissioning of the proposed Plant costing 78 million euro with ancillary works costing an additional IR£10 million.  The Court was told that under agreements with the Department of Public Enterprise, a supply of natural gas for the proposed plant had been secured by Dungarvan Energy Limited but that this supply could be allocated elsewhere if it was not taken up by September, 2002.  In addition a Bond in the sum of IR£5.3 million had been furnished by Dungarvan Energy Limited to the Minister for Public Enterprise to secure a penalty of approximately IR£30,000 per day in the event that the proposed plant was unable to supply power to the National Electricity Grid by the 9th September, 2002.  In addition Counsel stated that the loss of revenue to Dungarvan Energy Limited if start up was delayed would be in the region of 48,000 euro per day.
	Counsel for Dungarvan Energy Limited drew to the attention of the Court that these facts were stated under oath by Mr. Alistair Jessop, a Director of Dungarvan Energy Limited at paragraph 31 of an Affidavit sworn by him on the 29th January, 2001 in proceedings taken by Collette O’Connell against Dungarvan Energy Limited pursuant to the provisions of Section 27 of the Local Government (Planning and Development) Act, 1976, as substituted by Section 19 (4), (g) of the Local Government (Planning and Development) Act, 1992.  These proceedings were determined substantially in favour of Collette O’Connell by a judgment of the High Court, (Mr Justice Finnegan), given on the 28th February, 2001.
	In my judgment, having regard to the decisions in East Donegal Co-operative Livestock Mart Limited -v- The Attorney General (1970) I.R. 317 and O’Keeffe -v- An Bord Pleanala (1993) 1.I.R.39, on the foregoing assertions, Dungarvan Energy Limited, whose rights would be very seriously affected by the avoidance of the Integrated Pollution Control Licence must have a sufficient locus standi to maintain this application, even though it has not been joined as a Respondent in the proceedings as directed by the Supreme Court in the latter case, (see p. 78 of the Judgment per Finlay CJ), and could and should have applied itself to the Court to be added as such as a party, (p. 66/67 of the same Judgment).  It would in my view amount to a total denial of fairness and justice to this company if it could not intervene in this manner notwithstanding any procedural irregularity to protect its lawful interests and if all it could do was to fretfully and anxiously await the outcome of the issue between Collette O’Connell and the Environmental Protection Agency, or try to prevail upon the Employment Protection Agency to make this Application essentially on its behalf, which I am certain that Body, given its statutory function would be entirely reluctant to do.  
	The first basis upon which Dungarvan Energy Limited seeks an Order striking out the Judicial Review proceedings is that the proceedings are statute barred having regard to the provisions of Section 85 (8), of the Environmental Protection Agency Act, 1992.
	That subsection provides as follows:-
“A person shall not by any application for Judicial Review or in any other legal proceedings whatsoever question the validity of a decision of the Agency to grant or refuse a licence or revised licence unless the proceedings are instituted within the period of two months commencing on the date on which the decision is given.”

It was contended on behalf of Dungarvan Energy Limited that an application for Judicial Review is not “instituted” within the meaning of this subsection until after Leave to apply for Judicial Review has first been granted and an application for Judicial Review made by originating Notice of Motion or, if directed by the Court, by plenary summons.  The date upon which the decision was made to grant the Integrated Pollution Control Licence in this case was the 3rd January, 2001.  By Order of the High Court (Mr Justice McKechnie) made on the 2nd March, 2001 Collette O’Connell was granted leave to apply for Judicial Review with respect to the granting of this licence.  It is common case between the parties that an application for Judicial Review as provided for by Order 84 Rule 22 of the Rules of the Superior Courts, 1986, was not made within the period of two months commencing on the 3rd January, 2001.
In my judgment an application for Judicial Review is clearly a “proceeding” within the meaning of the Section 85 (8) of the Environmental Protection Agency Act 1992, and accordingly must be instituted within the stipulated period of two months.  It was held by the High Court in the case of NiEili -v- The Environmental Protection Agency and Others (1997) 2I.L.R.M.454 that the Court has no power to extend the time allowed by the Section.  I agree with the decision of Mr. Justice Kelly in that case.
In my judgment an application for Judicial Review for the purpose of this subsection is “instituted” as soon as a motion ex parte for leave to apply for Judicial Review is moved before the Court.  The interpretation contended for by Dungarvan Energy Limited would in my judgment lead to the most extraordinary results.  By Order 84 Rule 20 sub-rule 6 of the Rules of the Superior Courts, 1986 it is provided that where the Court grants leave to seek Judicial Review, it may impose such terms as to costs as it thinks fit and may require an undertaking as to damages.  By Order 84 Rule 20 sub-rule 7 of the Rules of the Superior Courts, 1986 it is provided that where leave to apply for Judicial Review is granted then:-
“(a)	If the relief sought is an Order of Prohibition or Certiorari and the Court so directs the grant shall operate as a stay of the proceedings to which the application relates or until the Court otherwise orders.
(b)	If any other relief is sought, the Court may at any time grant in the proceedings such interim relief as could be granted in an action begun by plenary summons.”

	To interpret Section 85 (8) of the Environmental Protection Agency Act, 1992 as meaning that an application for Judicial Review was not instituted until the date of service of an originating Notice of Motion or issue of a Plenary Summons must necessarily involve a proposition that the Court has power to make Orders equivalent to injunctions, impose terms as to costs and require undertakings as to damages in nonqualifying proceedings.  In my judgment the Legislature could not have intended such an extraordinary result.
	Should the Court refuse leave to seek Judicial Review, the Applicant has a right of Appeal to the Supreme Court under Order 58 Rules 1 and 13 of the Rules of the Superior Courts 1986.  If the interpretation contended for by Dungarvan Energy Limited is correct, then the Legislature in framing and enacting this Act must be assumed to have decided to disregard not alone an application invoking the power of the High Court but further, a possible application invoking the power of the Supreme Court in determining the relevant date.  Also, if an Applicant should be successful in an Appeal to the Supreme Court from a refusal of leave it would be an exercise in futility as the ensuing application for Judicial Review would almost invariably be instituted out of time.  I cannot accept that this was the intention of the Legislature.
	The Environmental Protection Agency at, 1992, does not itself contain any definition of the phrase, “proceedings are instituted” or of any word comprised in the phrase.  The same is true of the Interpretation Act, 1937.  In the case of Re: Vernazza (1960) 1.A.E.R.183 Wilmer, L.J., at page 191 referred to, “the almost impossible task of drawing an exact line between that which does and that which does not amount to ‘instituting’ proceedings.”  In the case of in Re: Becker (1975) 1.W.L.R., 842, Evleigh J., pointed out that the meaning of the word “proceedings” may vary depending on its context.  In my judgment the same may be said of “instituted”.
	Looking at the policy of the Environmental Protection Agency Act, 1992 and the possible abuse which was sought to be remedied by Section 85 (8) of that Act, - the proper protection of the Environment and the right of individuals and organisations to be involved in that process but with a limitation placed upon the time within which the validity of a licence or revised licence might be challenged so as to give some measure of certainty to developers without excluding objectors with a genuinely perceived and formulated grievance, - I find nothing to indicate that the second stage of the procedure commencing on the date of application for Judicial Review rather than the first stage commencing on the date of application for leave to seek Judicial Review was intended by the framers of the subsection.  Indeed as the Courts have already expressed some concern as to the shortness of an equivalent period in the Planning Code, the further shortening of this period of 2 months which must almost inevitably result if the application for leave to seek Judicial Review is required to be made within that period would in my judgment render the subsection constitutionally infirm and such a construction must be avoided if an alternative construction is available which without doing violence to the language of the subsection maintains its constitutional integrity.
	The second and alternative ground upon which Dungarvan Energy Limited seeks to strike out these proceedings for Judicial Review is that Collette O’Connell failed to make her application for Judicial Review “promptly” as required by Order 84 Rule 21 (1) of the Rules of the Superior Courts, 1986.  This order provides that, “an application for leave to apply for Judicial Review shall be made promptly......”.  This requirement of promptness in seeking the comprehensive new remedy of Judicial Review has always been an incident of the former prerogative remedies of Certiorari, mandamus and Prohibition.   In my judgment Section 85(8) of the Environmental Protection Agency Act, 1992, while imposing a non-expandable upper time limit within which an application for leave to apply for Judicial Review must be brought does not in any way suspend or lessen the requirement that every application for leave to apply for Judicial Review must be made promptly within that stipulated period.   
	In the case of The State (Curren) v. Brennan (1981) I.R. 181, Henchy J., at page 196 held that in determining whether a person did or did not act with the necessary promptness regard must be had to all the circumstances of the particular case.   At page 197 of the Report the learned Judge went on to hold that:-
	“The Prosecutor should have instituted proceedings forthwith so that none of the persons or bodies affected by the appointment would make plans or enter commitments on foot of it”.

	The Court in that case found that the delay of four months after the Applicant’s legal advisers had been formally notified that another candidate had been recommended for the position was “excessive and unreasonable”.  I think that it may be fairly inferred from the decision of Keane, J., (as he then was) in Director of Public Prosecutions v. Johnson (1988) I.L.R.M., 747 at 750 that a relatively short delay would not deprive an Applicant of what has been described as, “The great remedy available to citizens”, and that the delay would have to be such as might be categorised as, “substantial” in all the circumstances of the particular case, one such circumstance being the overall period of time allowed for the application.
	In the instant case the date when grounds for this application for Judicial Review first arose was the 3rd January, 2001 when the decision was made by the Environmental Protection Agency to grant the Integrated Pollution Control Licence to Dungarvan Energy Limited.   This is the decision which Collette O’Connell contends is unlawful and ultra vires the powers of that body as having been made without a prior Environmental Assessment Study.
	Collette O’Connell is a citizen whose dwellinghouse is located approximately 100 metres from the proposed power station and whose property could be adversely affected by emanations from that plant and who therefore has a sufficient interest to maintain this application.  She is acting on her own behalf and on behalf of her husband Mr. Otteran O’Mahony and their four children and is not acting on behalf of and so far as the Court has been made aware, does not have the support of any group or organisation or association either local or national. On the 12th October, 2000 Collette O’Connell lodged an objection with the Environmental Protection Agency opposing the application of Dungarvan Energy Limited for an Integrated Pollution Control Licence without a prior Environmental Assessment Study.   
	It was argued on behalf of Dungarvan Energy Limited that this was a very full and comprehensive document and accordingly, there was no valid explanation or excuse for her delay in seeking leave to apply for Judicial Review in consequence of which the Court should not entertain her application which was not made until the very last day of the statutory two month period of limitation.   They submit that given that Collette O’Connell must have been fully aware at the very latest when she received the Affidavit of Alistair Jessop sworn on the 29th January, 2001 in her proceedings pursuant to Section 27 of the Local Government (Planning and Development) Act, 1976 as substituted by Section 19(4)(g) of the Local Government (Planning and Development) Act, 1992 of the time frame within which Dungarvan Energy Limited must have built the power station and brought it into production and of the various substantial penalties and losses which could be imposed and incurred should they fail to meet those targets, the delay on her part until the 2nd March, 2001 in bringing on her application for leave to apply for Judicial Review is excessive, unreasonable and inexcusable. 
	In answer Counsel for Collette O’Connell submitted that she acted with all reasonable diligence and despatch having regard to the particular circumstances of this case.   Counsel submitted that in the days following Wednesday 3rd January, 2001 Collette O’Connell had to consider her position and to decide whether she would take the matter further.  In order to do this she sought and obtained access to the full Environmental Protection Agency file in the matter which was not available until after the 3rd January, 2001.  At this vital juncture her attention to this matter was distracted because she became aware that Dungarvan Energy Limited its agents and contractors appeared to be carrying out work on the site in breach of the conditions attached to the Grant of Planning Permission of 1st September, 2000.   To be certain she had to obtain access to and carefully consider the Planning Files of Dungarvan Urban District Council.  She then consulted her legal advisers in the matter.   On Monday 22nd January, 2001 by Motion ex parte she sought leave to apply for Judicial Review against Dungarvan Urban District Council and by way of separate proceedings sought interim relief against Dungarvan Energy Limited pursuant to the provisions of Section 27 of the Local Government (Planning and Development) Act, 1976 as substituted by Section 19(4)(g) of the Local Government (Planning and Development) Act, 1992.   On the 23rd January, 2001 she obtained from the High Court (Mr. Justice O’Neill), a prohibitory interim order in the Section 27 Proceedings and an Order granting her leave to apply for Judicial Review.  This Prohibitory Order was served on Dungarvan Energy Limited on the 24th January, 2001 but the work complained of continued notwithstanding.  What happened thereafter is best set out in summary form as follows:-
	“26th January, 2001 Motion by Collette O’Connell to joint Kevin Smith and 	William Roberty Kelly as Respondents.   
	26th January, 2001 Affidavit of Collette O’Connell grounding this application
	29th January, 2001 replying Affidavit of Simon Clear, town planner, on behalf of Dungarvan Energy Limited.
	29th January, 2001 replying Affidavit of Alistair Jessop Director of Dungarvan Energy Limited containing 19 pages and 36 paragraphs.
	29th January, 2001 Motion by Dungarvan Energy Limited seeking a discharge of the Orders of the High Court made on the 23rd January, 2001.
	29th January, 2001 Affidavit of Alistair Jessop grounding this application.
	30th January, 2001 Motion by Collette O’Connell seeking sequestration and attachment.
	30th January, 2001 Affidavit grounding this application 15 pages and 60 		paragraphs.
	30th January, 2001 Affidavit of Otteran O’Mahony in support of the 		application of Collette O’Connell.
	31st January, 2001 Affidavit of Peter O’Boyle, Solicitor, in support of the application of Collette O’Connell.
	31st January, 2001 Affidavit of Martin Hallissey in reply.  
	31st January, 2001 Affidavit of John O’Shea in reply.
	31st January, 2001 Affidavit of Billy Clancy in reply.
	31st January, 2001 Affidavit of Stephen O’Riordan, Solicitor, in reply.
	31st January, 2001 Supplemental Affidavit of Alistair Jessop.
	1st February, 2001 Supplemental Affidavit of Collette O’Connell eight pages and 19 paragraphs.  
	1st February, 2001 Supplemental Affidavit of Simon Clear.  
	1st February, 2001 second Supplemental Affidavit of Alistair Jessop five pages and eleven paragraphs”.

	Collette O’Connell alleged breaches by Dungarvan Energy Limited its agents and contractors of conditions 3,4,6,9,10,11,12 and 13 of the Planning Permission. Dungarvan Energy Limited denied these allegations and in addition put in issue the bona fides  and motivation of Collette O’Connell by reference to a series of meetings and agreements between the parties.  Collette O’Connell replied in detail to these allegations.  The result of all this was a file of Motions, Affidavits and Exhibits five millimetres thick.  The matter came on for hearing before the High Court (Mr. Justice Finnegan), on Wednesday, Thursday and Friday the 31st January, the 1st February and the 2nd February, 2001.  The Court reserved its decision and judgment was given on the 28th February, 2001.  Collette O’Connell succeeded as regards most of her claim and was awarded two days costs.  
	 In the absence of Affidavit evidence as to specific dates, I think it a fair inference to be drawn from the Affidavits and the sequence of events therein disclosed that it was sometime in the week preceding the 22nd January, 2001 that Collette O’Connell became aware of the apparent breaches by Dungarvan Energy Limited, its agents and contractors of the conditions attached to the Grant of Planning Permission, and having checked the Planning Files of Dungarvan Urban District Council determined to take legal proceedings to prevent such breaches.   Prior to this there was a period of approximately a week to twelve days during which she was considering her position and examining the newly available complete file of the Environmental Protection Agency in respect of the application for and the decision to grant the Integrated Pollution Control Licence. This short period could not possibly amount to excessive, substantial or unreasonable delay on her part. 
	In my judgment any delay after this initial period at least until Monday 5th February, 2001, being two days after the conclusion of the hearing of the Section 27 Proceedings in the High Court before Mr. Justice Finnegan, was due solely to the wrongful activities of Dungarvan Energy Limited, its agents and contractors.  In my judgment, it would be altogether unjust and unreasonable that Dungarvan Energy Limited should benefit from its own breaches of the Planning Permission which Collette O’Connell properly took legal proceedings to prevent and which I am satisfied resulted in her being distracted from and neglecting to prosecute an application to seek leave to apply for Judicial Review of the decision of the Environmental Protection Agency to grant a Integrated Pollution Control Licence in respect of the power plant.   Thereafter an overall period of 26 days, including 20 working days, elapsed before Friday 2nd March, 2001 when the application for leave to apply for Judicial Review was made to and granted by the High Court, (Mr. Justice McKechnie).   
	At paragraphs 3 and 4 of her Supplemental Affidavit sworn on the 11th May, 2001in this Application Collette O’Connell deposes as follows:-
	“(3)  I say that at paragraph 6 Mr. Jessop says that the application was not made promptly but I say that the application was made within two months of the giving of the decision.  I say that it is a technical and complex application relating to points of law arising from Irish and European legislation.  I say that by virtue of the range of issues, which the proceedings address, as set out in the Statement to Ground Application for Judicial Review, and in particular the substantive issue as to whether or not the project required Environmental Impact Assessment.”
	(4)  I say that it could not have been prepared any sooner as I say that first of all legal advice had to be obtained, professional advice had to be obtained as to the nature of the proposed development and the requirements and I say that there was extensive research carried out which could not have been made earlier and I say that the time limit provided for under the Environmental Protection Agency Act is itself a very short time limit and I say that in those circumstances there is no basis for the ascertain made by Mr. Jessop that the proceedings were not commenced promptly”.

	It is deposed by Collette O’Connell at paragraph 8 of the Affidavit sworn by her on the 30th January, 2001 in the Section 27 Proceedings that she possesses a University Degree in Social Science and that her husband possesses a University Degree in Electrical Engineering.  I have read the Objection submitted by Collette O’Connell on the 12th October 2000 in the Environmental Protection Agency in opposition to the application of Dungarvan Energy Limited for an Integrated Pollution Control Licence. While this is a comprehensive and technically proficient document I cannot accept the submission of Counsel for Dungarvan Energy Limited that there is in essence no material difference between it and the Statement to Ground the Application for leave to seek Judicial Review so that no proper or acceptable explanation for the delay in the making of the Application for leave to apply for Judicial Review has been advanced by Collette O’Connell upon whom the duty to explain an excuse this seeming delay lies.   
	In the case of NiEili v. The Environmental Protection Agency and Ors. (above cited) Kelly, J., additionally held that the Court has no power to permit an Applicant in a matter to which Section 85(8) of the Environmental Protection Agency Act, 1992 applies, to amend its Statement of Grounds to include new grounds which were not raised within the statutory two month period.  I accept the argument of Counsel for Collette O’Connell that in these circumstances an Applicant must be at especially great pains and be particularly careful to ensure that the Statement of Grounds is sufficiently comprehensive so as to encompass without prolixity each and every matter intended to be relied upon at the hearing and that consequently this adds significantly to the time and responsibility involved in the preparation of such document.
	I have considered the Statement of Grounds dated the 2nd March, 2001, and while it naturally has echoes of the Objection which was submitted by Collette O’Connell on the 12th October, 2000, I am satisfied that the former could not in any sense be described as a mere repetition or transcription of the latter but is a careful pleading raising a considerable number of apparently serious issues to be determined by the Court.  Even if it took essentially the same form and raised no further issues than the Objection it must still be regarded as an entirely different document with a wholly different significance notwithstanding that the consideration of lawyers and the advice of experts produced no material difference in form or content.  From the original Objection.  It would be absurd to suggest that the time devoted by lawyers and experts should be regarded as mere delay unless it resulted in a fundamental departure from the matters addressed in the Objection. 
	I accept that Collette O’Connell sought and obtained the advice of an expert on issues relative to the environment before delivery of the Statement of Grounds.  While it would have been altogether more satisfactory if these matters had been addressed fully by her in her Supplemental Affidavit sworn on the 11th May, 2001, I accept the submission of her Counsel that in addition to instructing Solicitors to act, it was necessary that counsel with a competence in this area of law, both national and european be retained and that such Counsel when retained had to find time while attending to all his other professional commitments to consider the case, attend consultations and settle the Statement of Grounds bearing in mind that this could not thereafter be expanded, and all within a period of 20 working days or less.
	No case was made to the Court that Dungarvan Energy Limited took any steps, entered into any agreements or commitments or set in motion any plans on foot of the decision of the Environmental Protection Agency on the 3rd January, 2001 to grant an Integrated Pollution Control Licence for the power plant of which Collette O’Connell was aware or ought reasonably have foreseen.  Indeed, having regard to the purpose of Section 85(8) of the Environmental Protection Agency Act, 1992, which both parties to the application accepted was the elimination of unmeritorious and tardy challenges and the conferring of a degree of certainty in these matters, any such course might be said to be foolhardy.  However, I wish to make it abundantly plain that I am not deciding that it is necessary for a party in Judicial Review proceedings to establish prejudice in order to succeed in an argument on delay.  Prejudice is simply one of the factors and no more which the Court takes into account in determining in the circumstances of each individual case the reasonableness or otherwise of the lapse of time before leave to apply for Judicial Review is sought.
	I am satisfied that Collette O’Connell has fully excused and explained any seeming delay on her part in seeking leave to apply for Judicial Review.  In such circumstances it is not necessary for the Court to consider the question of whether the two month time limit imposed by Section 85(8) of the Environmental Protection Agency Act, 1992, is a breach of the Principle of the Effectiveness in European Community Law, or whether the Court should seek a Ruling of the Court of Justice under Article 234 of the Treaty establishing the European Community.  I wish to express my appreciation of the helpful and incisive submissions on these questions by Counsel for Collette O’Connell and Counsel for Dungarvan Energy Limited and the Solicitor for the second and third named Notice Parties.
	The third basis upon which Dungarvan Energy Limited seeks to have the proceedings struck out is on the assertion that they are frivolous and vexatious and disclose no reasonable cause of action against Dungarvan Energy Limited or any other party.  This argument suffers from the infirmity that the cause of action of Collette O’Connell is against the Environmental Protection Agency and since that party has not made an application under Order 19 Rule 28 of the Rules of the Superior Courts, 1986, or by reference to the inherent jurisdiction of the Court, I greatly doubt whether Dungarvan Energy Limited can make such an argument on their behalf.  However, it is unnecessary to determine this matter or to express an opinion as to whether a Notice for the purpose of Order 84 Rule 20 is a “pleading” within Order 19 Rule 28 having regard to the provisions of Order 125 Rule 1 of the Rules of the Superior Courts, 1986.  
	In the words of Murphy J., (then of the High Court), in Tassan Din -v- Banco Ambrosiano Spa., (1991) 1 I.R., 569 at 572, “There is no room for debate as to the approach which this Court should take in dealing with an application of that nature.”  The learned Judge then cited the decisions in Blair -v- Crawford (1906) 1 I.R.578 at 586 per, Palles C. B.; Mulgrew -v- O’Brien (1953) N.I. 10 at 14 per Black, L. J., and Barry -v- Buckley (1981) I.R. 306 at 308 per Costello, J..   I also consider that the decision in Sun Fat Chan -v- Osseus Limited (1992) 1 I.R. 426 is relevant.  These cases clearly establish that the Court should exercise the utmost caution in depriving a party of the right to be heard and should do so only where confident that the claim must inevitably fail.  In this case Collette O’Connell was by Order of the High Court (Mr. Justice McKechnie), made on the 2nd March, 2001 granted leave to apply for Judicial Review on 18 separate grounds which the Court clearly considered at the very least to be stateable grounds.  Unless there is evidence to satisfy me that this Order was obtained by fraud, misrepresentation or material nondisclosure this basis of challenge to the proceedings must fail.  This leads directly to the fourth and final ground upon which Dungarvan Energy Limited seeks to have these proceedings struck out.
	This fourth ground asserts that the order of the High Court made on the 3rd March, 2001 was obtained by material nondisclosure and additionally or alternatively misrepresentation.  It is submitted on behalf of Dungarvan Energy Limited that Collette O’Connell failed it to disclose to the Court at the hearing of the motion ex parte for liberty to apply for Judicial Review in which circumstances there is an onus on the party applying to make full disclosure to the Court of all relevant material, the challenge to the bona fides of her application by Dungarvan Energy Limited in the Section 27 Proceedings.
	I believe that I may accept what was offered by Senior Counsel for Collette O’Connell, even in the absence of an Affidavit by the attending Solicitor on that occasion, that his Junior offered to open to the Court at the hearing of the Application all of the Affidavits sworn and filed in the Section 27 Proceedings but the Court did not require him so to do.  Even if I should proceed upon the basis that these matters were relevant I have to remain cognisant of the fact that serious issue has been joined between Mr. Jessop and Collette O’Connell on oath in lengthy Affidavits sworn by them in the Section 27 Proceedings as to the events which occurred, the reasons why they occurred, the manner in which they occurred, and the significance, (if any) to be attached to them.
	In the circumstances, even if these matters and the Affidavits in which they are set out had been fully opened to the Court in my judgment the Court would have had no option but to entirely disregard them particularly in the context of an application for leave to apply for Judicial Review where the Court is not adjudicating on the merits of the particular application.  I am making no finding whatsoever as to any of these issues as to bona fides but I do find that there was no material nondisclosure or misrepresentation on the part of Collette O’Connell or her legal advisors in the course of her application for leave to apply for Judicial Review in these proceedings.
	The final relief sought by Dungarvan Energy Limited in the Notice of Motion is an Order requesting Collette O’Connell to provide what it terms a “fortified” undertaking as to damages as a condition of being permitted to continue these Judicial Review Proceedings.
	Counsel for Dungarvan Energy Limited relied upon the decision of Laffoy, J., in the case of Broadnet Ireland Limited, Applicant -v- Office of the Director of Telecommunications Regulation, Respondent and by Order, several Notice Parties, (2000) 2.I.L.R.M. 241, and the decision of Finnegan, J. in Seery, Applicants -v- An Bord Pleanala, Respondent and several Notice Parties (unreported: 25/1/2001: written Judgment available).
	I have some very considerable reservations as to the power of the Court to make any form of Order, either against or in favour of a party who is on notice of proceedings but who is not a Respondent in the proceedings, and this  includes an Order as to costs and also includes an Order that an applicant should give an undertaking to pay damages to such a mere Notice Party for any possible loss sustained by such Notice Party should the Applicant not be successful in the proceedings against the Respondent.
	However no argument was addressed to the Court that the decisions upon which Counsel for Dungarvan Energy Limited relied were incorrectly decided and ought not to be followed so far as they relate to Notice Parties.  Collette O’Connell through her Counsel expressed a willingness to give an undertaking as to damages if the Court considered it appropriate. Arguments were confined to the issue of whether there were public law considerations in the case which should cause the Court to exercise its discretion in favour of not requiring an undertaking as to damages and to the issue of whether, if an undertaking was sought by the Court it ought to be in the form of a, “fortified” undertaking.
	Collette O’Connell sought and was granted a stay on the implementation of any provision of the Integrated Pollution Control Licence.  In such circumstances these proceedings may delay the construction and commissioning of the Power Station and may result in loss and damage to Dungarvan Energy Limited.  Had Dungarvan Energy Limited been joined, as in my judgment it ought to have been joined, as a party in the proceedings, in the absence of same compelling countervailing considerations.  I would have had little hesitation in finding that the justice of the situation required that such an undertaking as to damages be given.
	Counsel for Collette O’Connell pointed to what he said were serious public interest aspects of this Application and he instanced, the protection of Natural Habitats in Dungarvan Bay and the Ecology of the Cumeragh Mountains area; the alleged failure of the Environmental Protection Agency to implement properly or at all the E.C. (Natural Habitats) Regulations, 1997; the alleged failure of the Environmental Protection Agency to apply the, “totality principle” derived, he said, from Council Directive 85/337 E.E.C. and the failure of the Environmental Protection Agency Act, 1992, to provide for an Appeal procedure which Counsel said was contrary to the provisions of Article 34.1 and Article 40.3.1 of the Constitution of Ireland.  However, having regard to all the circumstances of the Application and in particular having regard to the terms of the Objection of 12/10/00, but without determining any matter at issue between the parties, I have concluded that the real substance of this Application is the preservation and protection of private property rights which are normally protected by private law remedies and the apparent public law aspects of this challenge are in fact subsidiary though important issues.
	In the circumstances I consider it appropriate that Collette O’Connell should give an undertaking to pay damages to Dungarvan Energy Limited in respect of any provable loss and damage sustained by it as a consequence of the stay on any implementation of the Integrated Pollution Control Licence should she not be successful in her challenge to the granting of that Licence.
	In our system of jurisprudence with a Constitutional right of access to the Courts, the occasions on which a Court might properly require what is described as a, “fortified undertaking to pay damages”, must be very few.  This is certainly not such an occasion.
	In the Broadnet Ireland Limited case Laffoy, J., held that an undertaking as to damages from that particular Applicant would be worthless, (see p. 262  of the Report).  Counsel for Collette O’Connell in my judgment correctly pointed to the very real difference between a limited liability company with no assets or capital and Collette O’Connell for whom as a person resident in the State of full age and not under any legal or other disability or incapacity and with some interest in immovable property in the State, and undertaking to pay damages was a very serious matter indeed.  The fact that the potential loss to Dungarvan Energy Limited might exceed her ability to make good that loss is no basis for regarding her undertaking as worthless and an abuse of the process of the Court.  I therefore refuse the application that the undertaking to pay damages which the Court requires to be given by Collette O’Connell should be supported in anyway whatever by the giving of security or the payment of money into Court or otherwise.  Counsel informed the Court that he had carefully advised Collette O’Connell as to the possible consequences of this undertaking and that he was satisfied that she fully understood them and was prepared to give the undertaking if sought by the Court.