Shellfish company loses legal appeal to force State to mediate

A company which alleges its oyster fishery business had to close due to the release of untreated or inadequately treated sewage into Cork harbour has been refused an order requiring the State and others to address its claims in mediation.

Atlantic Shellfish Ltd and David Hugh Jones, a director, lost their appeal against the High Court’s refusal last May to direct Cork County Council, the Minister for the Marine, the State and Irish Water to engage in Alternative Dispute Resolution (ADR).

Giving the Court of Appeal judgment, Ms Justice Mary Irvine, with whom Mr Justice Peter Kelly and Mr Justice Gerard Hogan agreed, noted this was the first case where the appeal court had to identify the relevant principles to be applied when considering whether to refer a dispute for ADR.

She was “all too mindful” of the fact litigation was becoming ever more complex and lengthy, placing considerable financial strains on participants and on scarce judicial resources, the judge said.

While it behoved the court proactively to encourage parties to try, wherever possible, to resolve their disputes in the ADR process, the court must be satisfied the issues were reasonably suitable for ADR.

This case was not suitable for reasons including the complexity of the legal issues raised, including a “particularly novel” point of law concerning the extent of the State’s duty and obligations to persons who may be adversely affected by the grant of a foreshore licence, she said. The plaintiffs claimed the alleged wrongdoing of the local authority was facilitated by such licenses.

The State had a bone fide reason for wanting a judge to resolve those, she said. The mediation being proposed was also likely to be long, complex and costly.

Because the High Court previously decided there should be a split trial of matters, involving liability being addressed before damages, those liability issues could with case management be decided early in 2016, Ms Justice Irvine added. If the defendants won on liability, that would avoid further costs of proceedings related to damages.

The plaintiffs’ case centres on claims their oyster fishery in Cork harbour was, from 1988 on, contaminated due to untreated or inadequately treated sewage being released into the harbour. Before 1988, sewage from Midleton was discharged into the Ballinacurra estuary, some 4.5km from their oyster beds, they claimed. After a new sewage scheme came into operation in 1988, sewage was discharged into the sea less than 1km from the fishery’s operations and there was a dramatic increase in complaints of illness by restaurant customers who ate their oysters, they alleged.

They first brought proceedings in 1992 against the council and minister which ultimately settled on terms, including a substantial financial payment to them and an undertaking from the council to bring a secondary waste water treatment plant into operation by June 23rd, 2000.

While that plant did become operational, the plaintiffs claimed there continued to be very high levels of bacterial matter in their oysters. In further proceedings initiated in 2001, they argued a foreshore licence was made in excess of the power of the minister and sought orders to prevent sewage discharges such as constituted a nuisance to oyster fishery.

In February 2002, they were directed by the minister to immediately cease harvesting oysters. They claimed they had to permanently close in October 2002 due to alleged admissions by the council of overflows of untreated effluent every day into Cork harbour in January and March 2002. They also alleged significant numbers of customers continuing to experience illness from eating the oysters.