THE SUPREME COURT
84 & 115/99
Keane C.J.
Murphy J.
Murray J.
AQUATECHNOLOGIE LIMITED
Applicant/Appellant
AND

NATIONAL STANDARDS AUTHORITY OF IRELAND, THE MINISTER FOR THE ENVIRONMENT, IRELAND AND THE ATTORNEY GENERAL
Respondents
Judgment delivered the 10th day of July, 2000 by Murray J. [Nem. Diss.]

These proceedings are judicial review proceedings initiated by the Applicant/Appellant (hereinafter the Appellant) against the Respondents pursuant to an order of Geoghegan J. of the 29th day of June, 1998 granting leave to the Appellant to apply for such judicial review.

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The proceedings have given rise to two appeals before this Court, the first from an order of the High Court of Geoghegan J. of March 2nd 1999 refusing the Appellant’s application for discovery of certain documents by the first-named Respondent and the second from an order of the High Court of McCracken J. of 23rd April, 1999 refusing an application on behalf of the Appellant to amend the Statement of Grounds on which the application for judicial review is based.

Appeal against Order refusing Discovery

I will first of all deal with the Appellant’s appeal against the Order of the High Court refusing its application for discovery. By way of notice of motion dated 15th December, 1998 the Appellant sought discovery of certain documents as against the first-named Respondent only (N.S.A.I.) and they are the only Respondent concerned with this particular appeal. The Appellant appeals from the Order of Geoghegan J. who by Order dated the 2nd day of March, 1999 refused to order the discovery of the documents sought against the first-named Respondent.

Background facts

Before detailing the documents sought in discovery it is necessary to set out some of the background facts and the issues in dispute between the parties.

The Appellant company is an importer of thermoplastic piping known as Euroflex. It has been importing this product into Ireland since June, 1995. Euroflex piping is, what has been referred to in the proceedings as, a “non-cross-linked” thermoplastic pipe. It is a building material intended for use for carrying hot and cold water for under floor heating and for high temperature radiator heating. What might be described as a more traditional form of

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plastic piping characterised as “cross-linked” piping is another form of thermoplastic pipe also used as a building material for similar purposes. It is common case that cross-linking has been a relatively well established method for enhancing or strengthening plastic pipes to enable them to cope with high temperatures. The Appellant contends that Euroflex thermoplastic piping, while non-cross-linked, has been enhanced in accordance with more recent technological progress which also enables it to deal with high temperatures and accordingly be used as a building material for the aforesaid purposes. This enhancement is said to be the result of the modified molecular structure of the plastic. The Euroflex piping is made from a resin manufactured by Dow Chemicals and the pipes themselves are manufactured by H.P.G. Heizorohr Produktions G.m.b.H.

Piping made from plastic materials would generally be unsuitable for use in situations of high temperature or high pressure. Hence the need for enhancement or strengthening of such piping in order to ensure that it meets certain standards of performance or “service requirements” concerning its durability when used for such purposes. Cross-linking is one method of enhancing plastic piping. It is not in contention that the plastic piping which is on the Irish market and which has to-date been certified by the first-named Respondents as complying with the appropriate service requirement standard has in every case been enhanced by the cross-link process. The Appellants, whose piping is non-cross-linked but enhanced by a different process, as indicated above, decided to apply for certification of their product as this was deemed necessary for full access to the Irish market. Neither is it in contention that the Appellant’s product was the first non-cross-linked thermoplastic piping for which certification was sought from the relevant Irish authorities.

Accordingly, in or about March/April, 1996 the Appellants decided to apply for a certificate of agreement from the Irish Agreement Board (hereafter I.A.B.)

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The I.A.B. is a consultative committee which functions under the aegis of the first-named Respondents, the N.S.A.I. The N.S.A.I. was established as an independent statutory body in 1996 pursuant to the National Standards Authority of Ireland Act, 1996. Its functions are set out in s. 7 of the 1996 Act. One of its functions is 

“to certify any commodity process or practice as conforming with an Irish standard specification, or with standard of another Member State of the European Union or with any other recognised public specification.”

The N.S.A.I., by virtue of the 1996 Act took over the functions previously carried out by the Institute for Industrial Research and Standards which had originally established the I.A.B. The I.A.B. issues Agreement Certificates for building and civil engineering products. Agreement certification is a favourable technical assessment of the fitness of such products for building and civil engineering purposes. The certificate is intended to provide an independent opinion on the performance in use of, inter alia, a building product and will clarify compliance with the technical requirements of any applicable controlling regulations. The agreement certificate has particular importance of the purposes of the Building Regulations, 1991, (S.I. No. 206 of 1991), the first schedule of which provides, inter alia, that products which have an I.A.B. certificate are acceptable for use in building.

The presentation of an application for an Agreement Certificate by the Appellant was followed by a fairly extended process in the course of which the Appellant furnished reports and a range of technical material supporting its case that it should be granted such a certificate. What the I.A.B. sought was compliance by the Appellant’s product with certain performance criteria. Eventually in March, 1997 a draft certificate was furnished by I.A.B. to the Appellants but this draft certificate was issued subject to N.S.A.I. standard conditions which makes a final certificate conditional on no new information becoming available which

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in its opinion would preclude the granting of the certificate. In the event the I.A.B. concluded that further information came to light which precluded it from issuing a final certificate and it declined to do so.

Issues in the main proceedings:

The Appellant’s cause of action against the first-named Respondents is based on their failure, through the aegis of its sub-committee the I.A.B., to issue the Certificate of agreement and their financial loss following from that failure.

I think it is important to note at this stage that there are essentially three grounds upon which the Appellants sought and obtained judicial review against the first-named Respondents. These are:-

(a)	Legitimate expectation on the part of the Appellants that an agreement certificate would be issued to them in respect of their product having regard to the conduct of the first-named Respondent, particularly the issue by the I.A.B. of a draft Certificate of Agreement.

(b)	A breach of Article 30 (now Article 28) E.C. Treaty and a breach of that Article in conjunction with Article 5 (now Article 10). (For present purposes I will continue to use the old Treaty numeration as used in the pleadings and affidavits). The Article 30 ground (and Article 5 in conjunction with Article 30), as appears from the Statement of Grounds in conjunction with a verifying affidavit, is based solely on the contention that the Appellant’s product complied with standards recognised in some other Member States of the European Union and was in free circulation in a number of such States. In the absence of a definitive standard for the particular product in this State, it is contended, that the first-named Respondents, as an emanation of the State, were in

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breach of Article 30 and Article 5 in refusing an agreement certificate in the light of such free circulation and the compliance of the product with those standards.

(c)	The Appellants have provided sufficient technical data and other information to demonstrate that they comply with the service conditions set out in standard pr EN 12318-1, which are the same as those in I.S.O. 10508, and the first-named Respondents are, accordingly, obliged to grant the Certificate of Agreement. A further ground (ground viii in the Statement of Grounds) was originally relied on by the Appellants in contesting the first-named Respondents reliance on a then draft standard pr EN 12318-1. This particular point has been abandoned and both parties are now agreed that pr EN 12318-1 is indeed the appropriate reference standard.

Furthermore, the relief sought in the judicial review include what I might call a sort of rolled-up plea against all respondents for damages for breach of Article 6 (now Article 12) as well as Article 30, and Article 5 of the E.C. Treaty. Article 6 prohibits discrimination on the grounds of nationality. Although it is well established that Article 6 applies independently only to a situation where no other Article of the Treaty specifically applies such as Article 30 in this instance, in any case nationality concerns persons i.e. nationals of Member States, and not the origin of products.

In any event as regards the first-named Respondents, Article 6 is not referred to in the grounds upon which relief is sought in the Statement of Grounds nor in the verifying affidavit. Therefore, for the purposes of this application Article 6 must be considered as irrelevant.

It is also important to note that there is no allegation or reference in the Statement of Grounds or in the verifying affidavit of discrimination or unequal treatment on the part of the

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first-named Respondents as against the Appellants. Certainly, unequal treatment or discrimination between national products and products from another Member State may constitute a breach of Article 30. However, the breach of Article 30 alleged by the Appellants is clearly grounded on the allegation that the refusal to grant a certificate to a product which was in free circulation in certain other Member States and which complied with certain standards recognised in at least some Member States constituted an obstacle to the free movement of goods contrary to Article 30. This is manifestly not an allegation of discrimination on the part of the first-named Respondents.

It is in the light of these issues that the Appellant’s application falls to be considered.

The Documents Sought:-

The documents which the Appellant seeks to discover as set out in the motion for discovery, are as follows:-

(a)	all applications submitted to the first-named Respondent for Agreement in respect of polyethylene piping in the last five years;

(b)	all correspondence entered into between such Applicants for Agreement and the first-named Respondent indicating the criteria applied by the first-named Respondent in respect of such applications and all correspondence indicating the nature of the methodology applied or to be applied to demonstrate compliance with the said criteria;

(c)	all certificates issued by the first-named Respondent to such applicants.

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Previous Discovery:-

The first-named Respondents have already made discovery in these proceedings to the Appellants of all documents in its power and possession concerning the actual application of the Appellant for an agreement certificate.

As appears from the document sought by the Appellant this application concerns documents in the possession of the first-named Respondents concerning the application for Agreement Certificates from the first-named Respondents by third parties in respect of polyethylene piping.

Arguments in support of the application for discovery:-

In his grounding Affidavit seeking discovery, Mr. David McCarthy, a director of the Appellant company, averred that the Appellants had sought to prove compliance of their product with the performance criteria set out in the applicable standard by way of two internationally accepted technical formulae, being:-

(a)	The use of extrapolated data; and

(b)	The use of “Miner’s Rule”.

It was submitted on behalf of the Appellants that the foregoing methodology for establishing compliance with performance criteria are internationally accepted as valid. It is submitted on behalf of the Appellants that if the first-named Respondents can be shown to have:

(i) accepted international standards which it refused to accept in this case,
(ii) accepted the results of European laboratories without seeking to contest the internationally accepted techniques applied by those laboratories,

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(iii)	accepted to furnish agreement to the Appellant’s competitors, and the Irish company Qualpex without having required of the latter to demonstrate compliance with ISO 10508 in the same manner as is required of the Appellant, or

(iv)	accepted the application of internationally accepted standards such as that providing for Miner’s Rule and extrapolation in other cases,

then this may assist the Appellant in advancing its case to the effect that the N.S.A.I. has breached Article 30 and/or 5 and/or 6 of the EC Treaty by discriminating against this imported product by imposing requirements not imposed on national producers of similar products.

Arguments of first-named Respondent:-

The submissions made on behalf of the first-named Respondents in the course of the hearing included the following:

(a)	Discovery of the documents in question are sought by the Appellants in order to establish an alleged discrimination or bias on the part of the first-named Respondents in its decision not to issue a final certificate of Agreement. There is nothing in the Statement of Grounds or the verifying Affidavit raising the question of bias or discrimination. The Appellants are not entitled to extend their grounds for judicial review to include such allegations without leave of the Court.

(b)	The documents sought in discovery are not relevant to any of the issues raised by the grounds referred to in the Statement of Grounds or the verifying affidavit. All documents relevant to those issues have already been discovered, that is, all the documents relating to the appellants’ own application for a certificate.

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(c)	A distinction must be drawn between the requirement that plastic piping respond to certain “service conditions” as laid down in the appropriate standard and the method by which compliance with the relevant service conditions is to be demonstrated. How this is demonstrated is a matter of choice for the person seeking to demonstrate compliance and the Appellant has chosen the use of extrapolated data in conjunction with an analysis method known as Miner’s Rule. All of the third party Applicants, to whom the application for discovery relates, used a different methodology to show compliance with the necessary service conditions and their applications were assessed on that basis. The affidavit of Mr. Crowe filed in the discovery application on behalf of the first-named Respondents established that in the case of cross-linked plastic pipes, which have been in used for a good number of years, there are internationally accepted product quality standards against which the characteristics of such pipes can be judged. Accordingly, any plastic pipe which has been enhanced by the cross-linked method and which have the characteristics set out in the product quality standard can be regarded as fit for service conditions within the meaning of the appropriate standard. The methodology used by the Appellant to demonstrate that their product, enhanced by a totally different process, responded to the service requirements of the appropriate standard was completely different. For these reasons documentation sought in relation to the applications for certification of the third-party Applicants were completely irrelevant.

(d)	The proper exercise by the first-named Respondent of its functions is dependent on a respect for the confidential technical or other information submitted to it. The first-named Respondents had a duty of confidentiality to each of the five third party applicants for a certificate in respect of their cross-linked product. In the

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circumstances the order for discovery sought is not necessary for disposing fairly of the proceedings between the parties and should not be granted.

Decision:-

The Appellant in its application relied upon the decision of the Court in Sterling Winthrop Group Limited v. Fabenfabriken Bayer [1967] IR 97 where it was held that 

“every document relating to the matters in question in an action, which not only would be evidence upon any issue, but which, it is reasonable to suppose, contains any information which may -not which must - enable the party requiring the affidavit to advance his own case or to damage the case of his adversary, should be discovered” 

However, it seems to me that there is nothing in that statement which is intended to qualify the principle that documents sought on discovery must be relevant, directly or indirectly, to the matters in issue between the parties in the proceedings. Furthermore, an applicant for discovery must show it is reasonable for the Court to suppose that the documents contain information which may enable the applicant to advance his own case or to damage the case of his adversary. An applicant is not entitled to discovery based on mere speculation or on the basis of what has been traditionally characterised as a fishing expedition.

As regards the present proceedings I would first of all say that the claim of the Appellants based on legitimate expectation is clearly not one on which they can ground an application for the discovery of documents concerning third party applications for certification and I do not think it was seriously contended that it was so. Whether the Applicants are entitled to succeed against the first-named Respondent on this ground depends entirely on the transactions which took place between those parties and their conduct in relation to same. The documents sought are not relevant to this issue.

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Fundamentally, the Appellant has claimed that discovery of these documents concerning the applications made by third parties for a certification of their particular products is appropriate in order to demonstrate that the first-named Respondent treated the application in a discriminatory fashion as compared to its other Irish competitors. In my view the first-named Respondents were correct in relying on the fact that this is not an issue which forms part of the issues in the proceedings since it did not form part of the Statement of Grounds for which leave to apply for judicial review was granted; nor is it set out in the verifying affidavit. As indicated above the grounds relied upon by the Appellants in the Statement on which the proceedings are based are not, in my view, in any way open to the construction that they were making the case that the first-named Respondent had exercised bias or discrimination in their evaluation of applications for certification for plastic piping by Irish companies other than the Appellant, by reason of the origin of the product or otherwise.

It seems to me on this ground the Appellants’ application should fail and that the order of the learned High Court judge should be upheld.

As regards the grounds of claim of the Appellant according to which the first-named Respondent was in breach of Article 30 or wrongly failed to accept the technical data and other information provided to it by the Appellants I am also of the view that the documents in question have no relevance to these issues. The fact that their product was in free circulation in other Member States and the assertion that it has been recognised as complying with certain international standards cannot be advanced or affected by documentation relating to other applications to the IAB for certification.

I think the same considerations apply to the claim by the Appellants that the first-named Respondents wrongfully refused to accept the technical data and other information supplied by them as demonstrating that their own product complied with the

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service requirements of standard pr EN 12318-1. The Appellant has obtained discovery of all documentation in the power or possession of the first-named Respondents concerning their own application. Whether it is entitled to succeed on this ground against the first-named Respondent depends upon expert evidence concerning the proper evaluation to be given to the technical data and other information presented in support of its application for a certificate.

There is one further matter which I wish to deal with. It was suggested, and I am not sure if it can be put further than that, but assuming that it can be, that the documents sought on discovery could help the Appellants to show that the first-named Respondents had or must have, in dealing with the applications for certification by third parties, relied on a methodology the same as that relied upon by the Appellants in their application namely, the extrapolation of data and Miner’s Rule. This suggestion or argument is based upon an earlier affidavit sworn on behalf of the Appellants by Mr. David McCarthy on October 12th 1998. That affidavit goes no further than saying that 

“it is difficult to see how products such as Qualplex”, (one of the third party applicants) “for which an agreement certificate was issued in November, 1995, can have demonstrated their compliance with pr EN 12318-1 without recourse to extrapolation or Miner’s Rule” (para. 16).

Earlier in the same affidavit Mr. McCarthy observes that “presumably” the first-named Respondents had subjected such pipes to the same rigorous assessment as his own product having regard to the fact that the performance criteria are the same for cross-linked and non-cross-linked piping. The suggestion that the first named Respondent had recourse to extrapolation and Miner’s Rule seems to me to be essentially speculative. In my view the uncontroverted evidence of Mr. William Crowe contained in his affidavit of 22nd February, 1999 in response to the affidavit of Mr. McCarthy grounding the application for discovery disposes fully and completely of this point.

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Mr. Crowe fully acknowledges that both of the Appellants product, a non-cross-linked product, and the cross-linked products of the third parties are required to respond to the same service criteria concerning their durability when exposed to central heating temperatures and pressure conditions as envisaged in pr EN 12318-1 which the parties, despite earlier disagreement, now agree is the appropriate standard.

In his Affidavit Mr. Crowe goes on to explain that the methodology of demonstrating that such service criteria are met is a distinct matter. The choice of methodology is a matter for the applicant.

It is not in dispute between the parties that “cross-linking” as a method of enhancing plastic pipes for use in central heating systems has been used and known for a good number of years. Mr. Crowe avers that this has led to the formulation of internationally accepted product quality standards against which the characteristics of cross-linked material can be judged. He says that the development of such standards in this way, together with the known behaviour of cross-linked material over a long time in service, is the basis for accepting cross-linked material shown to meet these characteristics. Once it is shown that the cross-linked product in question meets these characteristics it is possible to be satisfied that the material meets the service criteria with which we are concerned in this case. He averred that demonstrating that a cross-linked material has these particular characteristics is known as the “characterisation approach”.

The Appellant acknowledges in its Affidavits that cross-linking is an older approach and that its non-cross-linked piping is the result of newer technology whereby the piping is enhanced by modifying the molecular structure of the plastic. Furthermore, Mr. Crowe’s explanation of the basis and use of the “characterisation approach” has not been contradicted. Similarly, it has not been controverted that all the five third party applicants

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had their applications for certification evaluated and decided upon by means of the “characterisation approach” methodology.

I conclude from the evidence before the Court in the relevant Affidavits that both the Appellants’ non-cross-linked piping and the third party’s cross-linked piping must respond to the same performance criteria that is to say they must be capable of having the same durability in service conditions involving high temperature and high pressure. Both however had been enhanced or strengthened with a view to meeting these service criteria by a different technological process. The former, the cross-linked, for the reasons set out in Mr. Crowe’s affidavit may be evaluated according to a methodology known as the “characterisation approach”. It may possibly be that the Appellants’ non-cross-linked product is not susceptible to being evaluated by what has been called the “characterisation approach”. Whatever be the case, the fact is that the Appellant has sought to establish its product’s compliance with the necessary performance criteria by a totally different methodology, namely, extrapolation and Miner’s Rule. Presumably, there is a scientific methodology for demonstrating a product’s durability and service conditions over a long period of time (such as the fifty years envisaged for this kind of product) without having to engage in trial and error over the entire of such period. But that is not a matter with which we are concerned with in this application.

What is important here is that the Applicants’ product, on the basis of its own application, falls to be evaluated according to an entirely different methodology than that used for the five other third party applications. In these circumstances I do not think that the non-cross-linked product and the cross-linked product can be considered similar products for the purposes of this application and certainly given the wholly different methodology in question they cannot be said to belong to the same genre of application.

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In these circumstances I consider the suggested basis for the granting of discovery in this case as at best speculative, and that it has not been shown that the documents sought are directly or indirectly relevant to the issues between the parties.

For these reasons also I am of the view that the documents sought in discovery cannot reasonably be considered necessary or relevant for the disposal of the issues in these proceedings.

In my view the learned High Court judge was correct in refusing discovery.

Appeal against refusal of application to amend Appellants’ Statement of Grounds

I will now turn to the Appellants second appeal in these proceedings which concerns the refusal of McCracken J. by Order of 23rd April, 1999 to accede to the Appellants’ application to amend its Statement of Grounds.

Amendments sought:-

The Appellant seeks liberty to amend a statement of grounds with a view to adding the following reliefs:-

“(x) A declaration that the second named Respondent, in purporting to determine that the product was not a ‘proper material’ for the purpose of the regulations and/or that houses in which the product was used could not qualify for the payment of grants pursuant to Section 4 of the Housing (Miscellaneous Provisions) Act 1979 (‘the 1979 Act) breached the Applicant’s right to natural and constitutional justice.

(xi) A declaration that the second named Respondent, in relying upon the refusal of the first named Respondent to certify the product as its reason for

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purporting to determine that the product was not a proper material for the purpose of the regulations, acted ultra vires.”

Consistent with the foregoing proposed amendments the Appellants seek to add the following paragraphs to the grounds upon which relief was sought in the Statement of Grounds:

“(xvii) Wrongfully, and in breach of the Applicant’s rights to natural and constitutional justice and fair procedures, the second named Respondent purported to determine that the product was not a ‘proper material’ for the purposes of the regulations. The Applicant thereby suffered a prejudice. The Applicant was at no stage informed of the making of such a decision. Nor was the Applicant at any stage invited to make a submission in advance of the making of this purported decision. The Applicant has not been furnished with the information prejudicial to it which had been submitted to the second named Respondent by the first named Respondent. The applicant was not furnished with the reasons for the said decision. On foot of this purported decision, the second named Respondent equally wrongfully purported to determine that houses in which the product was used could not be afforded grants pursuant to the Housing (Miscellaneous Provisions) Act, 1979.

(xviii) The second named Respondent was not entitled to determine that the product was not a ‘proper material’ for the purposes of the regulations solely on the basis that the first named Respondent was unwilling to certify the product. In so doing, it acted on the basis of manifesting of onerous information. It failed to consider other relevant matters and thereby acted ultra vires”.

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The reliefs sought as against the second-named Respondent and specified in the statement grounding the original application for judicial review seek, inter alia, a declaration that the Appellants’ product is capable of being considered a “proper material” for the purpose of the Building Control Regulations, 1991 and an order of certiorari quashing the decision of the second-named Respondent purporting to refuse to accept the product as a “proper material” for the purpose of the regulations.

The Appellants contend that they had not been aware of any particular decision by the Minister, the second-named Respondent, that their product could not be deemed to be a “proper material” for the purposes of the Building Regulations until it emerged from Affidavits filed on his behalf subsequent to the granting of liberty to seek judicial review. These, it is claimed disclose that a specific decision had been made on June 3rd 1998. The Appellant contends that it only became aware of this particular decision as a result of the Affidavits sworn by Mr. Michael McCarthy on August 31st 1998 and December 14th 1998. It is submitted on behalf of the Appellant that the earliest date upon which it could be deemed to have been made aware of the particular decision taken by the second-named Respondent was August 31st 1998 although it also contends that it was not until the further Affidavit of December 6th 1998 that the position became absolutely clear. The Appellant also asks the Court to take into account that the information concerning the Minister’s decision emerged in a piecemeal fashion through the Affidavits sworn in the proceedings.

The application for leave to amend was made by motion dated the 15th March, 1999. The Appellant relies on 0. 84, r. 23 (2) of the Superior Court Rules. This provides that the Court may allow an applicant to amend his statement “whether by specifying different or additional grounds of relief ... or otherwise, on such terms, if any, as it thinks fit ...”

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The Respondents, in opposing the application, submit that the Plaintiff has failed to bring his action promptly, is out of time and has failed to explain or excuse the delay. It is also submitted that the Appellant misconstrues the decision process as a quasi-judicial determination.

On perusing the statement grounding the application for judicial review and the Affidavits filed in the proceedings it is clear that the Appellants were aware prior to the application for judicial review that the Minister had taken some decision which resulted in their product not being considered “proper material” for the purposes of the aforesaid Building Regulations. At least initially, they became aware of this through various building inspectors informing persons in the building trade that the product was not a “proper material” for the purposes of the regulations. There was subsequently a good deal of toing and froing between the Appellants and the Department of the Environment and I think it is also fair to say that it is only in the affidavits filed subsequent to the application for judicial review that it emerged that a specific or positive decision may have been made on a particular day by the Minister to the effect that the Appellants’ product should not be considered as a “proper material”. I say that such a decision on such a date “may” have been made since it at all times remains for the Appellants to establish this fact in the substantive proceedings. Whether the Minister was simply at no point satisfied that the product in question was not shown to be a “proper material” or whether at some specific point he took a positive decision to deem it not to be a “proper material” is something which will have to be addressed at the trial of the issues. Suffice to say for present purposes that the process by which the second-named Respondent came to consider that the product was not a “proper material” is not entirely clear. Neither was it entirely clear to the Appellant but it claims to have sufficient basis in the Affidavits filed on behalf of the second-named Respondent from

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which the Court of trial could conclude that there was a specific decision of the 3rd June, 1998 taken by the Minister.

In short from the Appellants’ perspective the circumstances as to when and precisely how their product was deemed not to be a “proper material” was somewhat opaque. This is not a criticism of the second-named Respondent who has to apply the regulations in question on a day to day basis on a much broader front than simply one particular product. It is however a factor to be taken into account in the context of the Appellants’ particular application in this instance.

I think it is also relevant to take into account that the proposed amendments do not extend the ambit of the proceedings in a significant manner. It is not seeking to include a new cause of action, although I would not consider this alone a determining factor. The judicial review proceedings already include a claim for certiorari of a decision of the Minister. The proposed amendments seek to include, if not ancillary, complementary grounds for attacking that decision, albeit more specifically. The Appellant has, in my view, established that it should be allowed at least to make the case grounded upon the proposed amendments.

As regards delay, if the Appellant knew or ought to have known of the alleged particular decision of the Minister of June 3rd 1998 on service of the Affidavit of Mr. Michael McCarthy sworn on August 31st 1998 they are out of time for the making of their application by a short period. Nonetheless, having regard to all the circumstances of the case as outlined above I am of the view that the delay is excusable and that the application for leave to amend the Statement of Grounds should be granted.

For these reasons I would allow this particular appeal.