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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> AHP Manufacturing B.V. trading as Wyeth Medica Ireland -v- D. P. P. & Ors [2008] IEHC 144 (08 May 2008) URL: http://www.bailii.org/ie/cases/IEHC/2008/H144.html Cite as: [2008] IEHC 144, [2008] 2 ILRM 344 |
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Judgment Title: AHP Manufacturing B.V. trading as Wyeth Medica Ireland -v- D. P. P. & Ors Composition of Court: O'Higgins J. Judgment by: O'Higgins J. Status of Judgment: Approved |
Neutrtal Citation [2008] IEHC 144 THE HIGH COURT JUDICIAL REVIEW 2007 No. 50 J.R. BETWEEN AHP MANUFACTURING B.V. TRADING AS WYETH MEDICA IRELAND APPLICANT AND THE DIRECTOR OF PUBLIC PROSECUTIONS THE ENVIRONMENTAL PROTECTION AGENCY, IRELAND AND THE ATTORNEY GENERAL RESPONDENTS Judgment of Mr. Justice Kevin O’Higgins delivered the 8th day of May, 2008. The applicant has operated a pharmaceutical production facility in County Kildare pursuant to Integrated Pollution Control licences (“IPC licences”) granted by the Environment Protection Agency (“E.P.A.”) since January, 1997. The Agency first granted a licence to the applicant on the 14th January, 1997 and issued a revised licence registered number 309 on 27th March, 1998. The Agency then issued further revised licence registered number 581 on the 15th February, 2002. Conditions 7.1 and 7.2 of the IPC licences registered numbers 309 and 581 (the impugned conditions) essentially provided that waste sent off the site for recovery could only be conveyed by a waste contractor approved by the E.P.A. On the 28th November, 2006, the applicant was served with eighteen summonses charging a series of alleged offences in relation to the disposal of waste on various dates between the 18th September, 2000 and 31st May, 2001. Five of the eighteen summonses alleged offences breaching the terms of the impugned conditions. In the case of each of the five summonses the same breach is alleged to have occurred on different dates. On the 22nd January, 2007, the applicant was granted leave to apply for judicial review seeking a number of reliefs against the respondents:- (a) In respect of the Director of Public Prosecutions (“D.P.P.”), the applicant was granted leave to seek an order of prohibition or an injunction to restrain the prosecution of the five charges in the summonses alleging breach of the conditions in the licences granted to the applicant. (b) In respect of the Environmental Protection Agency (“E.P.A.”), the applicant was granted leave to challenge the validity of the certain conditions in the licences granted to the applicant by the E.P.A. (c) In respect of the third named respondent, the State, the applicant was given leave to seek a declaration to the effect that the statutory provisions under which the licences were granted and the impugned conditions attached thereto were unconstitutional. On the 13th April, 2007, the E.P.A. issued a motion to have the grant of leave set aside. On the 19th April, 2007, the Attorney General issued a motion to have the grant of leave set aside and on the 15th May, 2007, the Director of Public Prosecutions brought a motion inter alia to have the leave set aside as being out of time. There was a discrete issue between the Director of Public Prosecutions and the application but that issue is now resolved and does not require adjudication by the Court. On the 18th May, 2007, the applicant brought a motion to amend the grounds to include an argument that the statutory time limit provided for in s. 87(10) of the Environmental Protection Agency Act, 1992 (as inserted by s. 15 of the Protection of the Environment Act, 2003) is unconstitutional. The Court is concerned with these four motions. The reliefs sought. The relief sought against the E.P.A. is a declaration that the conditions in respect of the alleged breach to which the summonses relate are ultra vires the (E.P.A.) and unlawful, void and of no effect. The applicant seeks an order of certiorari quashing such conditions. The applicant seeks a declaration that sections of the Environmental Protection Agency Act, 1992 are repugnant to Article 15.2.1 of the Constitution in that the said provisions allow an impermissible delegation of the sole and exclusive law making power of the Oireachtas to the authority of the E.P.A. This argument is primarily a matter to be dealt with by the State. As has been already noted, the applicant also brings a motion seeking to amend its statement of ground so as to challenge the constitutionality of the time limits contained in the Environmental Protection Agency Act, 1992 (as amended). The applicant seeks an order of prohibition or an injunction restraining the Director of Public Prosecutions from further proceeding with his prosecution on five of the summonses, the subject matter of these proceedings. No specific argument is directed specifically at the Director of Public Prosecutions separately. However a successful application for relief against the other respondents would have the consequence that the applicant would also succeed in his application against the Director of Public Prosecutions. This hearing is not concerned with the substantive issues but only with the motions brought by the various parties. The Environmental Protection Agency, Ireland and the Attorney General, and the Director of Public Prosecutions all maintain that the applicant’s application should be dismissed at this stage without going to a full hearing for the reasons argued in Court, and the applicant seeks to amend his grounds to include a new constitutional claim. The issues. The issues for the decision of the Court are as follows: (1) Is the applicant precluded from obtaining relief because of the provisions of s. 87(10) of the Act of 1992 (as amended)? (2) Is the applicant precluded from obtaining the relief sought by virtue of the delay, either pursuant to the inherent jurisdiction of the Court or the provisions of Order 84 of the Rules of the Superior Courts, 1986? (3) Has the applicant the requisite locus standi to pursue the constitutional claim in respect of the contention that the conditions imposed on the applicant by the Environmental Protection Agency were ultra vires the Agency? (4) Is the applicant precluded, by reason of lack of locus standi, from seeking to pursue a new constitutional argument that the time limits imposed in the Act of 1992 (as amended) are unconstitutional? 1. The provisons of the Environmental Protection Agency Act (as amended) Section 87(10) of the Environmental Protection Agency Act, 1992 (as amended) is clear. It provides as follows:-
I was referred to the fourth edition of Bennion, Statutory Interpretation A Code, 4th Ed., (Butterworths, 2002) at p. 729 under section 281, where the following passage appears:-
The Court went on to quote a passage from Bennion, Statutory Interpretation, 2nd Ed., (Butterworths, 1992) at p. 572 as follows (on p. 434):- “Whenever it can be argued that an enactment has a meaning requiring infliction of a detriment of any kind, the principle against doubtful penalisation comes into play. If the detriment is minor, the principle will carry little weight. If the detriment is severe, the principle will be correspondingly powerful. As Staughton L.J. said in relation to penalisation through retro-respectivity it is a matter of degree – the greater the unfairness, the more it is to be expected that Parliament will make it clear if that is intended. However it operates, the principle requires that persons should not be subjected by law to any sort of detriment unless this is imposed by clear words”. It is clear that the intention of the legislature as expressed in s. 87(10) is to establish a strict time limit for challenging decisions. It states as follows:-
I am not convinced that there is any ambiguity or uncertainty posed by the wording of the Act of 1992 (as amended) even taking into account the principle of statutory interpretation contended for by the applicant. It follows from that finding of the Court that the applicant is precluded from bringing these proceedings as he is clearly many years outside the time limits set out in s. 87(10) of the Environmental Protection Agency Act, 1992 (as amended) 2. The effect of Order 84 rule 21 of the Rules of the Superior Courts If, however, I am wrong in my conclusion that the provisions of s. 87(10) of the Act of 1992 (as amended) are applicable in this case and preclude the applicant from pursuing these proceedings, and if, contrary to what I have concluded, s. 87(10) does not apply to conditions as opposed to the decision to grant the licence, the applicant is still faced with a difficulty by virtue of the Order 84 of the Rules of the Superior Courts, 1986. Order 84, rule 21 reads as follows:- “(1) An application for leave to apply for judicial review should be made promptly and in any case within three months from the date when grounds for the application first arose, or six months where the reliefs sought is certiorari unless the Court considers that there is good reason for extending the period within which the application shall be made. (2) Where the relief sought is an order of certiorari in respect of any judgment order, conviction or other proceeding, the date when grounds for the application first arose shall be taken to be the date of that judgement order, conviction or other proceeding. (3) The preceding paragraphs are without prejudice to any statutory provision which has the effect of limiting time within which an application for judicial review may be made.” The respondents submit that the application was not made either promptly or within the time limits prescribed by Order 84, rule 21 nor has there been any reason advanced for the extension of the period in which the application should be made and in those circumstances the application for leave should be set aside. The applicant however, contends that it is within time for the bringing of this application. The relevant summonses dated the 16th November, 2006, were served on the applicant on the 28th November, 2006, and were returnable for the District Court at Naas, Co. Kildare on the 10th January, 2007, at which date the applicant was sent forward for trial to the Circuit Criminal Court. Leave to seek for a judicial review was sought and granted by the High Court (Peart J.) on the 22nd January, 2007. The applicant argues that the time began to run when it was placed in potential jeopardy by virtue of the return for trial, and that there was no delay on its part. The respondents, however, contend that the time to challenge the conditions has to be reckoned from the time when those conditions were imposed. I agree with the arguments of the respondents in this regard. The applicant applied for, obtained and used a licence subject to conditions for many years. It was given an opportunity to be heard on the matter prior to the granting of the licence. It was free not to accept the licence if any of the conditions were unacceptable. The licence was renewed. The argument is not and cannot be made that the applicant was unaware of any of the relevant matters in the licence. The applicant was aware for many years of the possibility of serious penal sanctions in the event that conditions of the licence were breached. I cannot accept the contention of the applicant that the requisite time to be reckoned to challenge the validity of the licence was only when the summons were served and he was returned for trial. Moreover Order 84 specifically provides that the application be made within the time stipulated in the order to be reckoned from when the “grounds for the application first arose”. I cannot construe that as being from the time of the institution of the current criminal proceedings. The fact that the circumstances have changed and that the applicant is now facing criminal charges does not serve either to alter the statutory provisions of s. 87(10) of the Act of 1992 (as amended) nor does it relieve the applicant of its obligations to comply with the requirements of Order 84 rule 21 of the Rules of the Superior Courts, 1986. The applicant has clearly failed to do that. Collateral Challenge The applicant argues that there is nothing to suggest that s. 87(10) of the Act of 1992 (as amended) is intended to preclude collateral, as opposed to direct challenges to the licence whether by means of judicial review proceedings or in other proceedings. It argues that the challenge to the conditions of the licence is collateral to the subject matter in this case which is the seeking of an order prohibiting the trial of the applicant. I was referred to the case of Blanchfield v. Hartnett [2002] 3 IR 207. In that case the applicant argued that in order to seek the quashing of an order made by the District Judge he must seek certiorari by way of judicial review in the High Court and contended the Circuit Court did not have requisite jurisdiction to rule that the orders were invalid before deciding on the question of how its discretion would be exercised. The Supreme Court disagreed with that proposition and decided that it was not necessary for a party to apply by way of judicial review in advance of a trial to have orders quashed. It was held that the overwhelming responsibility imposed by law and the Constitution on the trial judge was to ensure fairness of the trial and an exceptionally important part of this function was to adjudicate on the evidence to be placed before the jury. The need for the Court of trial to have any jurisdiction appropriate for the disposal of such problems is underlined by the undesirability of interrupting criminal trials to enable judicial review applications to be made. It is clear from the judgment in that case that there is no general rule against collateral challenges such as would deprive a trial court of such powers are inherent in the process of deciding on the legality of steps taken to enable the prosecuting authorities or the State to gather evidence for the case. The Court was looking at issues integral to the investigation and the bringing of charges in the context of the criminal procedure adopted in that case. In the present proceedings, the licence in question and its conditions have an existence entirely independent of the criminal proceedings. Apart from the factual differences between Blanchfield v. Hartnett and the present case, however, there is a specific statutory provision providing a time limit for the institution of challenge to the licence, not only in cases of judicial review but in “any other legal proceedings whatsoever”. Even if the Court were to hold that the challenges to the licence and its conditions is a collateral challenge in the present case it would not aid the applicant. I was also referred to certain passages in Wandsworth London Borough Council v. Winder [1985] AC 461, where the question of collateral charges in the context of the English equivalent of Order 84 was discussed. In his speech Lord Fraser said at p. 509 of the report:-
‘It is a principle not by any means to be whittled down that the subject’s recourse to her Majesty’s courts for the determination of his rights is not to be excluded except by clear words’……If the public interest requires that persons should not be entitled to defend actions brought against them by public authorities where the defence rests on a challenge to a decision by the public authority, then it is for the parliament to change the law.” The second named respondent further argues that the question of the impugned licence conditions is not collateral in the present case. Although the relief is sought against by way of prohibition against the Director of Public Prosecutions, if the challenge in these proceedings to the validity of the licence conditions is successful, the prohibition would follow. There is no argument addressed specifically to the Director of Public Prosecutions. The challenge has nothing to do with any steps taken by or on behalf or invoked by the Director of Public Prosecutions or any body or agency acting on its behalf with a view to criminal prosecution. This contrasts with the case of Blanchfield v. Hartnett which considered the Bankers’ Books Evidence Act, 1879. The licence and its conditions existed for many years prior to the institution of criminal proceedings. It was granted by the E.P.A. on foot of an application for a licence to carry on a particular application. The substance of these proceedings is to attack a decision of the E.P.A. to impose conditions of a particular nature to the licence, together with a follow on challenge to the constitutionality of the provisions under which those conditions were imposed. The substance of the applicant’s argument is that the decision to attach conditions was invalid. I agree with the E.P.A.’s contention that it is mischaracterisation of the proceedings to describe the challenge to the conditions of the licence as a collateral issue in these proceedings. In my view, the central issue is this case is the challenge to the licence and its conditions and to s. 87(10) of the Act. The fact that the challenge is taken in the context against the background of criminal proceedings does not change the central issue. 3. and 4. Locus standi to argue constitutionality of Act, and to argue other constitutional grounds The respondent was given leave to challenge s. 80(1), 83(1), 84(1) or s. 84(2) of the Act of 1992 (as amended)as being contrary or repugnant to the Constitution and, in particular, Article 15.2.1 thereof:-
It is submitted by the respondent that the applicant has not got the requisite locus standi to make either constitutional challenge and, furthermore, that there is no good reason to allow the amendments sought in respect of the motion of the 18th May, 2007. The resistance to allowing both constitutional challenges to be heard by the Court (as opposed to the reasons for not permitting the amendment on the issue in relation to the time limits) is on the basis that the courts will not decide cases on the basis of a constitutional challenge if the matter can be otherwise disposed of. As Fennelly J. observed at p. 556 in the case of White v. Dublin County Council [2004] 1 IR 545:-
In that case the constitutionality of s. (2)(b) of the Statute of Limitations Act 1957, was challenged on the basis that it did not contain an exception in favour of an injured person who did not become aware of the relevant facts on which his claim was based until after the expiration of the period of limitations or until a short time before its expiration. The Supreme Court declined to entertain this constitutional point on the basis that the constitutional claim was based solely on the absence of statutory provisions which, if present, would not be applicable to the facts of the applicant’s claim, that she could not establish that any right of hers had been infringed or threatened by the absence of such a provision and that, accordingly, she lacked locus standi to invoke the jurisdiction of the courts to determine the validity of s. (2)(b) of the Statute of Limitations Act 1957. Mr. Connolly, for Ireland and the Attorney General, submits that the Court should not allow the applicant to argue that the provisions of the legislation giving the Environmental Protection Agency the right to impose conditions are unconstitutional. He submits that because of the time limits imposed by the Rules of the Superior Courts, 1986, it is not possible for the applicant to show that he is prejudiced by the existence of the conditions alleged to be unconstitutional. In circumstances where even a finding that conditions were unconstitutional would not avail the applicant, it is submitted that he should be precluded from seeking such a finding by the Court. The applicant also relies on certain passages in the case of White v. Dublin County Council, [2004] 1 IR 545 where an unqualified period of two months provided for under the planning code was struck down as being impermissible because the rigidity of the period could lead to an injustice for the plaintiffs. It was submitted by Mr. Connolly for the State that the salient factor in that case was that the plaintiffs, through no fault of their own, were prejudiced by the existence of a rigid two month period and this could lead to an injustice. The following passage appears at p. 575 of the report:-
Counsel for Ireland and the Attorney General submits that the applicant has no locus standi to argue the constitutional position and relies strongly on the decision of the Supreme Court in Cahill v. Sutton and in particular the passages contained at p. 282 of the judgment where Henchy J. stated:-
At page 286 of the judgment, Henchy J. further stated:- “The primary rule as to standing in constitutional matters is that the person challenging the constitutionality of the statute, or some other person for whom he is deemed by the court to be entitled to speak, must be able to assert that, because of the alleged unconstitutionality, his or that other person’s interests have been adversely affected or stand in real or imminent danger of being adversely affected, by the operation of the statute”. The applicant, however, points out that there are substantial factual differences between its position and that of the plaintiff in Cahill v. Sutton (notwithstanding that both cases are concerned with the validity of time limits). It submits that in contrast to the plaintiff in Cahill v. Sutton, it has a vital interest in the constitutional argument which it wishes to make. It points out that if successful in the constitutional claim the serious criminal charges which it now faces would fall. The applicant also relies on Cahill v. Sutton and in particular the passage at p. 285 of the report where Henchy J. stated as follows:
In relation to the applicant’s motion to amend grounds to include a challenge to the constitutionality of the time statutory limits, I was referred to the case of Ni Eílí v. Environmental Protection Agency [1997] 2 ILRM 458, where Kelly J. with customary clarity set out some of the factors which were relevant to the exercise of his discretion to refuse an amendment of procedures. In that case he took into account the following at page 466:-
(2) Although her legal representation has changed since the order of Morris J., that in itself is not a good reason to allow the alteration. (3) The expansion sought is a major one and really involves an entirely new and different relief to that already contended for. It is in effect a new cause of action. (4) If granted, the new reliefs would inevitably involve the joinder f the additional party, namely the Attorney General [that is different from the position in this case where the Attorney General is already a party to the action]. (5) Even if a rigid time limit of two months is not imposed by the Act, nonetheless the view of the legislature as to the desirability of such a period being adhered to is of significance. Here four and a half months went by without these new claims being advanced. [In the present case a number of years went by before the claims being advanced]. (6) No satisfactory explanation has been given for the failure to apply for the leave stage for the reliefs now sought to be introduced. I do not consider any disputes which the applicant may have had with the Legal Aid Board subsequent to the order of Morris J. to be of any relevance in this regard. [No explanation at all has been given for the failure to apply that the leave stay should now sought to be introduced]. (7) The new reliefs, by their very nature, can only fall for consideration when all the other existing grounds have been adjudicated on and decided against the applicants. They are therefore discrete reliefs and their joinder now can only give rise to additional cost and expense.
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