High Court dismisses Brownfield's costs claim against Wicklow Council for delaying waste removal order compliance.

[2024] IEHC 260

THE HIGH COURT

PLANNING & ENVIRONMENT

[H.SP.2008.0000056]

BETWEEN

BROWNFIELD RESTORATION IRELAND LIMITED

PLAINTIFF

AND

WICKLOW COUNTY COUNCIL

DEFENDANT

AND

THE ENVIRONMENTAL PROTECTION AGENCY AND THE MINISTER FOR HOUSING, LOCAL

GOVERNMENT AND HERITAGE

NOTICE PARTIES

AND

THE HIGH COURT

PLANNING & ENVIRONMENT

[H.SP.2020.0005730]

BETWEEN

BROWNFIELD RESTORATION IRELAND LIMITED

PLAINTIFF

AND

WICKLOW COUNTY COUNCIL, IRELAND AND THE ATTORNEY GENERAL

DEFENDANTS

(No. 11)

JUDGMENT of Humphreys J. delivered on Wednesday the 8th day of May, 2024

1. Nearly seven years ago, the court ordered the council to remediate Whitestown dump by

January 2024. That deadline for completion of the total and complete removal of waste and

contaminated or potentially contaminated soil passed months ago, but the actual removal of waste

hasn’t even begun.

2. Before the court are various applications arising from or related to this situation. Among

other things, non-compliance can have consequences in terms of costs or contempt, and here we

have applications under both headings. Out of the myriad of issues to be dealt with now, the two

most pressing questions are as follows.

3. The first prominent issue is - where the council delayed implementing the court’s order and

engaged in gathering new data when the court had already ruled that there was enough data, does

the council have a liability for costs arising from that period and in particular for costs of its attempt,

later abandoned, to reopen issues in that regard that had been settled by the court after a lengthy

trial?

4. The second pressing issue arises from the fact that to proceed against a party for contempt,

the law normally envisages service of the order marked with the penal endorsement prior to the

expiry of the time for compliance. The plaintiff failed to effect such service. Should the court

therefore hold off on proceeding with any contempt issue against the council until, for example, the

time for compliance is extended and the order served within the time as so extended?

Procedural history

5. A potted history of this matter is set out in Brownfield Restoration Ireland Ltd. v. Wicklow

County Council (No. 10) [2023] IEHC 712 and perhaps that can be taken as read as a statement of

the background for present purposes.

6. This matter concerns two sets of proceedings, a 2008 waste injunction action and a 2020

damages type plenary action.

7. A first trial of the 2008 action took place before O’Keeffe J. in 2011, but was adjourned on

the basis of a proposal by the council to remediate the site.

8. A second trial took place in 2017 following that attempt at remediation, which resulted in an

order for full remediation to be carried out by the council over a 6 and a half year timescale. That

deadline expired in January 2024 as noted above.

9. In Brownfield Restoration Ireland Ltd v. Wicklow County Council (No. 8) [2023] IEHC 137,

[2023] 3 JIC 2102 (Unreported, High Court, 21st March 2023), I approved the remediation plan in

part and determined that the balance of the plan would await further steps including advices from a

court-appointed expert if appointed.

10. In Brownfield Restoration Ireland Ltd v. Wicklow County Council (No. 9) [2023] IEHC 250,

[2023] 5 JIC 1606 (Unreported, High Court, 16th May 2023), I awarded costs to the applicant for

the period 28th September 2022 to 21st March 2023 and provided for the issue of certain motions

by the parties as follows:

(i) a motion by the EPA regarding the terms of the remediation plan;

(ii) a motion by the council varying the time lines;

(iii) a motion by the council concerning the appointment of an expert; and

(iv) a motion by the application concerning costs incurred prior to the remediation plan

approval process.

11. On 27th November 2023, on the council’s application, I ordered that there would be such an

expert to be appointed by the court. I also adjourned the EPA motion regarding the terms of the

remediation plan generally with liberty to re-enter on the basis of an agreed approach between the

EPA and the council.

12. In Brownfield Restoration Ireland Ltd. v. Wicklow County Council (No. 10) [2023] IEHC 712,

certain modalities of the work of the expert were set out. It was also directed, without objection,

that the sequence of the remaining issues would be:

(i) who the expert should be;

(ii) the applicant’s costs application;

(iii) any motion for payment on account, if brought (it wasn’t); and

(iv) the council’s request to vary timelines (the council hasn’t pressed this issue as yet).

13. I also directed that the costs of the application leading to the No. 10 judgment would be

addressed when the court dealt with the applicant’s costs motion (in fact that has been now

superseded by a formal motion).

14. On 22nd January 2024 I gave further interim directions, without objection so that the

remediation timetable would continue. In accordance with the council’s own time estimate, it would

be required to procure and secure void spaces and circulate suitability assessment questionnaires

(SAQs) by 31st March 2024 without prejudice to the long stop date.

15. On 29th January 2024 I set a date for the hearing of most of the outstanding matters (16th

April 2024 onwards). I also heard evidence from the first of the proposed candidates for the position

of expert. It was also ordered by consent that there be no duty of care on the part of the experts

in favour of any third party including the parties herein and that the duty of care of the experts shall

be to the court alone. The parties were directed to prepare a Scott schedule in relation to the costs

issues. Finally the plaintiff was permitted to bring any fresh motions returnable for 12th February

2024, having raised the issue of possibly bringing motions on payment on account and on the

consequences of non-compliance by the council with the existing orders. While not recorded in the

perfected order, I provided a deadline for step 10C (as set out in the third affidavit of Mary Cahill),

finalisation of the tender documentation, in the council’s suggested amended variation of the

timescale, by end-June 2024, subject to that being revisited in the light of the expert’s view when

appointed. And in the 2020 5730P proceedings I directed that discovery letters would issue prior to

12th February 2024.

16. On 12th February 2024 I heard evidence from the defendant’s second proposed candidate

expert. I also gave directions regarding further steps:

(i) the plaintiff would have until Monday 19th February 2024 to issue its motions:

(a). in the 2008 case regarding failure to comply with the court order;

(b). in the 2008 case, regarding costs from 21st March 2023 to the hearing of April

2024; and

(c). in the 2020 case regarding moving the case along by interlocutory directions;

(ii) such motions were to be returnable for 26th February 2024;

(iii) time would be extended to 13:00 on Friday 23rd February 2024 for the issue of the

plaintiff’s and council’s discovery letters;

(iv) the plaintiff to reply to the State’s discovery request (made on of 9th February 2024)

by 13:00 on Friday 23rd February 2024;

(v) there be a formal order (to rectify the omission from the perfected order of 29th

January 2024) that step 10(c) in the 3rd affidavit of Mary Cahill (finalise tender

documentation) be carried out by 30th June 2024, subject to any contrary views of the

expert in due course;

(vi) the parties would agree a document on the forensic duties of the expert within 2 weeks;

(vii) the council to propose rates and terms and conditions within 2 weeks;

(viii) the plaintiff to populate a Scott schedule of its costs position within 2 weeks by

reference to specific dates and matters; and

(ix) the council’s first motion (dated 1st June 2023) regarding an expert, which was

subsequently re-issued, was struck out.

17. On 26th February 2024 the position was as follows:

(i) the plaintiff confirmed that the motions regarding contempt and costs had been issued;

(ii) discovery letters were in progress, the plaintiff had agreed the defendant’s request for

discovery in the 2020 proceedings and the defendant was considering the plaintiff’s

request;

(iii) the date of the hearing was changed by agreement from 16th April 2024 for four days

to 18th April 2024 for 2 days; and

(iv) the agenda for the hearing was to be the contempt motion and the plaintiff’s two costs

motions, together with any outstanding issues from the council’s motion to appoint the

expert.

18. On the following mention date of 11th March 2024, the position was:

(i) as regards a date for legal submission and any replying affidavit by the council on the

contempt issue, this was to be by 11:00 on Tuesday 19th March 2024 with a reply by

the plaintiff by 25th March 2024, the plaintiff’s submission by 28th March 2024, the

council’s legal submission by 10th April, 2024 and the statement of case by 12th April

2024;

(ii) as regards the Scott schedule on costs, the plaintiff’s information had been included

but the council had not done so and would complete it by 19th March 2024;

(iii) no provision was sought for further affidavits on the costs issue;

(iv) as regards the document on the duties of the expert the council had proposed an

amended version of the terms including these duties - the council would now prepare

an amended version of this with the duties in a schedule, with appropriate headings

distinguishing the duties applying to experts generally (points 1-8) from those applying

to court appointed assessors (9 and 10), and would create a separate document listing

relevant caselaw that has been drawn upon, by 20th March 2024, with the plaintiff to

have until 4th April 2024 to propose amendments by way of tracked changes;

(v) as regards the terms and conditions of the expert, the council had proposed a text in

that regard for consideration by the plaintiff;

(vi) as regards a potential indemnity, the council now included this in the draft terms for

the expert;

(vii) as regards discovery by the council, the council has issued a reply to the plaintiff’s

request for discovery rejecting the discovery sought, which the plaintiff is considering

and is reserving its position;

(viii) as regards discovery by the plaintiff, the plaintiff had yet to reply;

(ix) the parties were to seek further information on the motion recorded on the High Court

system dating from 2009;

(x) word versions of plaintiffs motions regarding contempt and second costs motion were

to be uploaded by 13th March 2024;

(xi) Brownfield needed to issue a notice of intention to proceed in the plenary action and

should do so by 8th April 2024;

(xii) the council’s application to approve the remediation plan was to be dealt with after the

expert’s advice is available; and

(xiii) the matter was to be listed on 8th April 2024 for review of progress.

19. The position on 8th April 2024 was as follows:

(i) the council had completed suggestions for the terms of reference and duties;

(ii) both sides had completed the costs Scott schedule; and

(iii) the plaintiff was to prepare a draft statement of case by Friday 12th April 2024 with

the council populating it by Monday 15th April 2024.

Motions issued to date in the 2008 proceedings

20. The motions and applications recorded in the High Court system in the 2008 proceedings

are as follows:

(i) 19th February 2024 – plaintiff’s motion regarding contempt (currently live);

(ii) 19th February 2024 – plaintiff’s motion seeking costs from 23rd March 2023 to date

(currently live);

(iii) the plaintiff’s motion dated 15th June 2023, seeking costs of proceedings from 19th

July 2017 to 28th September 2022 (currently live);

(iv) 9th June 2023 - Motion Filed by Council Reissued regarding independent expert

(currently live);

(v) 1st June 2023 - Motion Filed by Council regarding Independent expert (struck out);

(vi) 19th May 2023 - Motion Filed by EPA seeking to amend Order at para. 56 in judgment

delivered 21st March 2023 (subsequently adjourned generally);

(vii) 20th April 2022 - Motion filed by the council seeking admission to the Commercial List

(date on plaintiff copy is 14th April 2022) (which was granted);

(viii) 16th June 2020 - Motion filed by council regarding a detailed quantitative risk

assessment, which was a form of revisiting the previous judgments of the court (date

on copy served on plaintiff is 15th June 2020) (adjourned generally – see No. 6

judgment para. 14, and No. 8 judgment);

(ix) 24th April 2017 - Motion filed by council seeking directions for a modular trial

(granted); and

(x) 14th October 2009 Notice of Motion relating to discovery (disposed of by O’Keefe J.).

Motions and applications currently before the court

21. Motions (i) to (iv) above are currently live. The order in which they were to be dealt with at

the hearing of 18th April 2024 was to be as follows:

(i) finalise issues regarding expert including formal appointment;

(ii) contempt; and

(iii) costs motions, with the discussion assisted by the Scott Schedule.

22. These matters were heard, broadly in that order, on 18th and 19th April 2024 when

judgment was reserved.

23. The 2020 proceedings were also mentioned and addressed by agreement in that they were

adjourned generally with liberty to re-enter. The parties are of course at liberty to progress any

issues like discovery in the meantime if they so wish, but basically the plaintiff felt that the

complexities of the 2008 case should be resolved first and the other parties agreed to that.

Issue 1 - Matters relating to the expert

24. The council’s motion seeks the following reliefs:

“1. An Order pursuant to Judgment (No.8) of this Honourable Court directing the

appointment of an independent expert to ensure and guarantee independently the volume

of waste and soil removed from the site at Whitestown and in this regard to carry out the

following: (i) to review and assess the suitability of the approach, methodology, site

investigation and environmental monitoring data, risk assessment(s) and all other relevant

information used in the preparation of the remediation plan to determine that the soils

remaining in situ in Zones D, E, F and G do not pose an environmental treat; (ii) to review

and assess the approach and methodology proposed in the remediation plan to determine

all waste and potentially contaminated soil is removed from Zones A, B and C; (iii) to review

and assess all scientific evidence to include but not limited to environmental data and risk

assessments to confirm that all waste and potentially contaminated soil is removed from the

site.

2. Further or other order.

3. An Order for the costs of, and incidental to, this application.”

25. Some issues relating to the expert have already been dealt with, and I am now dealing with

the balance of the issues and also wish to set out a little more detail about some of the matters that

have already been addressed.

26. The plaintiff’s submissions pointed out that an expert other than a court-appointed joint

expert is best conceptualised as an assessor under section 59 of the Supreme Court of Judicature

Act 1877 and Order 36, rule 41 of the Rules of the Superior Courts (as inserted by S.I. No. 254 of

2016).

27. The council’s motion was taken in stages. The decision in principle to appoint an expert and

directions on some modalities of work were dealt with first, followed by the identity of the expert.

28. The appointment by the court of an expert either on its own motion or from a list supplied

by the parties is a necessary adjunct to the judicial process and not a formal procurement process.

Nonetheless it should be reasonably clear that objective criteria are being applied; and any candidate

not favourably considered should have available to her a reason for that outcome. Conversely, there

is a public interest in data minimisation regarding the identity of persons being considered for the

role for the obvious reason that publicity would be a disincentive to participation in any quasi-

competitive process. However while the process began as quasi-competitive, it ended by agreement,

so such detailed reasons no longer arise.

29. The agreed candidate was Ove Arup & Partners Ireland Limited, trading as Arup. Mr Sean

Mason went through the issues addressed in the fourth affidavit of Mary Cahill. It is proposed that a

team comprising Sean Mason, Engineer and Project Director, Gerry Baker, Senior Hydrogeologist,

Jenny Lightfoot, geo-environmental specialist and Christopher Newton, chartered geologist, would

provide assistance to the Court. All these experts have experience in complex landfill remediation

projects. Mr Mason was the lead on remediation of the Irish Glass Bottle site and dealt with legacy

landfills and related projects including Greystones marina and Arklow river flood defence works,

Alexandra Basin redevelopment, and on numerous quarries, with experience in contaminated soils.

Mr Gerry Baker had experience in landfill projects and modelling of impact of contamination on

receiving groundwaters. Ms Jenny Lightfoot was involved in Liverpool festival gardens remediation

and had extensive experience in dealing with the EPA. Another expert was involved in a number of

projects including the Glass Bottle site. Should any issues arise regarding EIA or AA, Arup could call

on suitably ecologically qualified colleagues. Arup were familiar with the brief for the expert and

referred to the need for an outcome acceptable to both parties. They would act independently of

the council notwithstanding that they did other work for the council on other projects. Mr Mason

had availability although was on call for the Metrolink oral hearing.

30. He referred to the terminology of ensuring and guaranteeing removal of waste but indicated

that indemnities would apply and that normal professional insurance would not cover a “guarantee”.

As regards going beyond EPA requirements his reading was that the court order was that if material

was placed on site as waste it should be removed, but could be reused if uncontaminated. As regards

timelines, the draft plan would need to be ratified and then translated to works and technical

specifications. Under cross-examination he made the point that work with the council was through

public procurement procedures. Indirectly he was engaged with the council as a sub-contractor on

the Greystones marina and was previously involved in the Arklow flood scheme which was a direct

appointment by the council. In that capacity his point of contact was an official outside the waste

section. His interface to date with the law agent was about obtaining judgments and preparing for

giving evidence, not discussing the legal issues. He has checked with the team that none had

involvement with Whitestown and didn’t have knowledge of previous involvement with Wicklow

waste section. He did not have any particular knowledge of the court duties of an expert. Mr Mason

was based in the Dublin office and would be in a position to maintain continuity. He understood the

requirement that anything brought as waste should be removed.

31. At the end of his evidence the plaintiff indicated that there was no particular objection to the

appointment of Arup.

32. Both Arup and the other potential candidate were excellent, although all witnesses could

have presented greater demonstration of knowledge of the forensic duties of a court expert. The

tie-breaker was the plaintiff’s attitude – the plaintiff didn’t object to Arup whereas it expressed no

such neutrality about the other candidate. No detailed rationale for that approach was articulated

other than perhaps the scale of Arup which the plaintiff considered to be an asset, despite it actively

working for this particular council.

33. As I said in the No. 8 judgment, the court would get involved in picking the expert only in

default of agreement by the parties, so when agreement arrived, the matter was taken out of my

hands. So the cross-examination of the other witnesses was basically unnecessary, and could have

been avoided altogether had the plaintiff acted in more efficient manner. I will come back to that.

34. As regards the issue of lack of demonstration of knowledge of the forensic context, that is

not an irremediable problem.

35. In that regard, in order to assist the parties and structure the compilation of their views, an

initial draft statement of expert’s duties, drawing on the leading textbook, Mark Tottenham et al., A

Guide to Expert Witness Evidence (Bloomsbury, 2019), chapter 3, was sent to the parties for

comment on 14th February 2024. After some exchanges with the parties, a revised version was

agreed. The contractual terms are set out in Schedule I to this judgment. The summary of duties,

as approved by the court, appears as Schedule II to this judgment. Any minor changes of layout or

wording in the attached can readily be incorporated in the final contract before signature.

36. While there is a lot of caselaw in relation to experts, not all precisely consistent, and not all

of it referred to in Schedule II, I have reviewed as much of it as has come to my attention from a

reading of the relevant parts of Mr Tottenham’s book and from the submissions of the parties and it

seems to me that Schedule II reflects the most persuasive views in caselaw regarding a summary

of the essential duties of the experts.

37. Following the finalisation of the list of duties and the contractual terms, the terms of

engagement including these duties are to be formally agreed to by Arup who, subject to that, will

stand appointed.

38. The next step will be for the assessor to advise on the balance of the remediation plan and

the timescale for full remediation. Obviously the decision remains with the court but in principle it

would be desirable if the expert, once appointed, would liaise with both sides with a view to

narrowing the issues and reporting to the court.

Issue 2 - Unawarded costs of the proceedings to date

39. The plaintiff’s first motion regarding costs seeks the following primary relief:

“An Order that the Defendant doth pay the Plaintiff’s costs in these proceedings from 19 July

2017 to 28 September 2022, to include reserved costs and the costs of entry into the

Commercial List, to be adjudicated by the Legal Costs Adjudicator in default of agreement.”

40. The plaintiff’s second costs motion seeks:

“1. An Order that the Defendant doth pay the Plaintiff’s costs in these proceedings from the

23rd day of March, 2023 to the date of such Order, to include reserved costs in relation to

that period, to be adjudicated by the Legal Costs Adjudicator in default of agreement.

2. Such further or other Order as to this Honourable Court doth seem fit and meet.

3. An Order providing for the costs of and ancillary to this application.”

41. As to costs, the position is:

(i) costs before 19th July 2017 have already been disposed of;

(ii) costs from 19th July 2017 to 28th September 2022 are the subject of the plaintiff’s

first motion;

(iii) as noted above, costs from 28th September 2022 to 21st March 2023 have already

been awarded to the plaintiff; and

(iv) costs after 22nd March 2023 are covered by the plaintiff’s second costs motion.

42. To assist in addressing the costs, the parties helpfully prepared a Scott schedule on costs as

follows (colour coding omitted):

NO DATE RETURN CALLOVER/ RESULT/ OUTCOME AFFIDAVITS PLAINTIFF’S DEFENDANT’S

MOTION DATE FOR POSITION POSITION

ISSUED MENTION/

HEARING …

1 19 July Remediation Order

2017 (Judgment No. 4)

2 17 May 2019. Costs Items 2, 3, 4

Affidavit should follow and 5 are

sworn by costs of connected and

Marc remediation should be dealt

Devereux for Order and be with together.

Defendant awarded to Matter listed at

the Plaintiff. the Court’s

motion.

Purpose of

affidavit was to

update Court

on progress

since Order.

Given that the

court directed

the listing and

no substantive

order made,

the parties

should bear

their own costs

in respect of

items 2, 3, 4

and 5.

3 20 May 2019 For mention to review Affidavit of Costs Matter

compliance with Order Bernadette should follow adjourned on

of 19 July 2017 Guinan sworn costs of 20 May 2019

Defendant directed to 23 May 2019 remediation so that

file Affidavit for Defendant Order and be defendant

awarded to could file

the Plaintiff affidavit from

environmental

consultant to

set out steps

taken since

appointment.

4 Affidavit of Costs

Anne Stokes should follow

sworn 24 May costs of

2019 on remediation

behalf of Order and be

Plaintiff awarded to

the Plaintiff.

5 27 May 2019 Remediation plan Costs Matter

progress update. should follow adjourned until

costs of 26 July 2019,

remediation in

Order and be circumstances

awarded to where COA

the Plaintiff hearing on 23

July 2019.

6 26 July 2019 Adjourned pending Costs Matter listed

Court of Appeal should follow for mention.

Decision costs of No order

remediation made, other

Order and be than to adjourn

NO DATE RETURN CALLOVER/ RESULT/ OUTCOME AFFIDAVITS PLAINTIFF’S DEFENDANT’S

MOTION DATE FOR POSITION POSITION

ISSUED MENTION/

HEARING …

awarded to proceedings

the Plaintiff until 18

November

2019.

Appropriate

order is that

parties bear

their own

costs.

7 Second Costs Items 7 and 8

Affidavit of should follow are connected.

Marc costs of Purpose of

Deveraux remediation affidavit was to

sworn on 8 Order and be update court

November awarded to on

2019 for the Plaintiff. developments

Defendant since previous

listing.

8 18 Remediation plan Costs No substantive

November progress update. should follow order made on

2019 costs of foot of this

remediation listing. Matter

Order and be adjourned until

awarded to 15 June 2020

the Plaintiff in anticipation

of draft

remediation

plan being

available in

May 2020.

Appropriate

order is that

parties bear

their own

costs.

9 Third Affidavit Costs Items 9, 10,

of Marc should follow 11, 12, 13, 14,

Deveraux for costs of 15, 16, 17, 18

Defendant remediation are all related.

sworn 12 Order and be Affidavit filed in

June 2020 awarded to context of

the Plaintiff. Defendant’s

application to

have Court

approve DQRA

tools as part of

Tier 3 Risk

Assessment

under EPA

Code of

Practice.

10 Second Costs Affidavit set

Affidavit of should follow out update as

Bernadette costs of to site

Guinan sworn remediation investigation

15 June 2020 Order and be and report and

for Defendant awarded to set out

the Plaintiff. background to

decision to

undertake a

Tier 3 risk

assessment

and request for

DQRA

approval.

11 15 June Order granting liberty Motion not Court directed

2020 to the Defendant issue pursued and that Defendant

NO DATE RETURN CALLOVER/ RESULT/ OUTCOME AFFIDAVITS PLAINTIFF’S DEFENDANT’S

MOTION DATE FOR POSITION POSITION

ISSUED MENTION/

HEARING …

and serve Notice of adjourned issue Motion

Motion on Plaintiff by generally on formally

16 June 2020 and the application of seeking an

Plaintiff has liberty to Defendant; order

issue and serve a costs should approving

Replying Affidavit to follow that DQRA tools.

said Motion by 30 June event and be

2020. Matter awarded to

adjourned for mention the Plaintiff.

to 6 July 2020.

Further or in

the

alternative,

costs

should follow

costs of

remediation

Order and be

awarded to

the Plaintiff

12 Affidavit of Motion not

Raymond pursued and

Stokes sworn adjourned

30 June 2020 generally on

for Plaintiff application of

Defendant;

costs should

follow that

event and be

awarded to

the Plaintiff.

Costs

should follow

costs of

remediation

Order and be

awarded to

the Plaintiff.

13 16 June 6 July Motion seeking Order Motion not Motion

2020 2020 for Court approval of pursued and returnable to 6

modelling tools for adjourned July 2020.

qualitative risk generally on Adjourned to

assessment in application of allow

accordance with the Defendant; Defendant to

EPA Code of Practice costs should consider and

adjourned on consent. follow that reply to

event and be affidavits filed

awarded to by the Plaintiff

the Plaintiff. (affidavits of

Ray Stokes and

Costs Dr. Ted

should follow Nealon)

costs of

remediation

Order and be

awarded to

the Plaintiff.

14 Affidavit of Dr Motion not

Ted Nealon pursued and

sworn 30 adjourned

June 2020 for generally on

Plaintiff application of

Defendant;

costs should

follow that

event and be

NO DATE RETURN CALLOVER/ RESULT/ OUTCOME AFFIDAVITS PLAINTIFF’S DEFENDANT’S

MOTION DATE FOR POSITION POSITION

ISSUED MENTION/

HEARING …

awarded to

the Plaintiff.

Costs

should follow

costs of

remediation

Order and be

awarded to

the Plaintiff.

15 Third Affidavit Motion not Responding to

of Bernadette pursued and affidavit of Mr.

Guinan sworn adjourned Stokes and Dr.

22 July 2020 generally on Nealon.

for Defendant application of Explains why

Defendant; EPA Code of

costs should Practice should

follow that be followed

event and be and best

awarded to practice

the Plaintiff. involves

Costs carrying out

should follow Tier 3 risk

costs of assessment

remediation and approval of

Order and be DQRA tools.

awarded to However, notes

the Plaintiff. Plaintiff’s

opposition to

Council’s

approach,

despite

previously

seeking

assurance that

Code of

Practice would

be followed.

Indicates that

a risk

assessment

can be

incorporated

into draft

remediation

plan, in view of

Plaintiff’s

change of

position and

that relief

sought in

Motion not

needed.

16 Fourth Motion not Responding to

Affidavit of pursued and affidavits filed

Marc adjourned on behalf of

Deveraux generally on the Plaintiff

sworn 17 July application of (Stokes and

2020 for Defendant; Nealon)

Defendant costs should

follow that

event and be

awarded to

the Plaintiff.

Costs

should follow

costs of

remediation

NO DATE RETURN CALLOVER/ RESULT/ OUTCOME AFFIDAVITS PLAINTIFF’S DEFENDANT’S

MOTION DATE FOR POSITION POSITION

ISSUED MENTION/

HEARING …

Order and be

awarded to

the Plaintiff.

17 Replying Motion not

Affidavit of Dr pursued and

Ted Nealon adjourned

sworn 24 July generally on

2020 for application of

Defendant Defendant;

costs should

follow that

event and be

awarded to

the Plaintiff.

Costs

should follow

costs of

remediation

Order and be

awarded to

the Plaintiff.

18 27 July 2020 Defendant’s motion not Motion not Relief sought in

pursued and adjourned pursued, and motion not

generally on adjourned pursued,

application of generally on because

Defendant with costs application of Plaintiff’s

reserved Defendant; affidavits made

costs should clear they were

follow that resiling from

event and be insistence that

awarded to EPA Code of

the Plaintiff. Practice be

adhered to.

Costs

should follow Appropriate

costs of order in

remediation respect of

Order and be items 9 to 18 is

awarded to that the parties

the bear their own

Plaintiff. Re costs.

19 Affidavit of Costs Items 19 to 29

Mary Cahill should follow are related and

sworn 16 costs of arise on foot of

April 2021 for remediation the

Defendant Order and be submissions

awarded to received in

the Plaintiff. response to

draft

remediation

plan circulated

in November

2020.

In particular,

NPWS request

for AA to be

undertaken

(contained in

submission

from the

Minister for

Tourism,

Culture, Arts,

Gaeltacht,

Sports and

NO DATE RETURN CALLOVER/ RESULT/ OUTCOME AFFIDAVITS PLAINTIFF’S DEFENDANT’S

MOTION DATE FOR POSITION POSITION

ISSUED MENTION/

HEARING …

Media dated 15

March 2021 on

the (first) draft

remediation

plan.

20 19 April The matter was Costs Matter

2021 - adjourned for mention should follow adjourned to

Remote to 17 May 2021. The costs of the SID List on

Judge encouraged remediation 17 May 2021,

everyone to work on Order and be for mention, to

practical steps. awarded to allow

the Plaintiff. opportunity for

Defendant and

Fehily Timoney

to meet with

the NPWS and

the EPA in

order to

discuss the

NPWS's

request that a

full NIS be

prepared and

an AA

undertaken.

21 17 May 2021 An Order was made by Costs The Court

– Remote the Court directing should follow requested

that the matters be costs of attendance of

listed on 26 July 2021 remediation the NPWS

and that the Defendant Order and be arising from its

to complete Step 7 of awarded to request for

the No. 4 Judgement the Plaintiff. NIS/AA.

delivered herein by

circulating a revised

Remediation Plan by

that date. Liberty to

apply.

22 26 July 2021 The Court highlighted Costs

– Remote its concerns about should follow

delay, and directed costs of

that a one page remediation

summary of Order and be

the various steps to be awarded to

taken by the Council the Plaintiff.

(further to Steps 6 and

7 set out in his

Judgment) should be

prepared. Matter was

adjourned to 29 July

2021.

23 Affidavit of Costs Raising

Raymond should follow complaints as

Stokes sworn costs of to content of

29 July 2021 remediation draft

for Defendant Order and be remediation

awarded to plan.

the Plaintiff. Unnecessary

where

Judgment No.4

provided a

facility for

Plaintiff to

make

submissions on

content of draft

NO DATE RETURN CALLOVER/ RESULT/ OUTCOME AFFIDAVITS PLAINTIFF’S DEFENDANT’S

MOTION DATE FOR POSITION POSITION

ISSUED MENTION/

HEARING …

plan – which

Plaintiff did.

Mr. Stokes’

affidavit sought

to complain

about need for

AA

24 29 July 2021 An Order was made Costs This was

– Remote that the should follow necessitated in

Defendant complete costs of light of

the biodiversity remediation Department’s

surveys required for Order and be request for AA

the preparation of a awarded to to be

Natura Impact the Plaintiff. undertaken.

Statement (NIS) as

required by Minister

for Tourism, Culture,

Arts, Gaeltacht, Sports

& Media (NPWS)

pursuant to Regulation

42(19) and Regulation

2011 by 17 December

2021. Matter

adjourned for mention

on 11 October 2021.

25 30 Judgment No. 6

September

2021

26 Fifth Affidavit Costs Responding to

of Bernadette should follow complaints

Guinan sworn costs of made in

30 remediation affidavit of Ray

September Order and be Stokes.

2021 for awarded to

Defendant the Plaintiff.

27 11 October Matter adjourned for Costs

2021 – mention for three should follow

Remote weeks with direction costs of

that submissions be remediation

made within two Order and be

weeks regarding each awarded to

step in the timetable. the Plaintiff.

28 27 October Costs Plaintiff

2021 – should follow questioning,

Plaintiff’s costs of inter alia, the

Submissions remediation need for AA

filed. Order and be and why

awarded to position of

the Plaintiff. NPWS only

came to light

so long after

the Order.

29 1 November An Order was made Costs In respect of

2021 – that interim directions should follow the matters in

Remote be made as per [17] of costs of 19-29, the

the No. 6 Judgment remediation Council accepts

without prejudice to Order and be that they relate

the date for awarded to to issues

compliance of the the Plaintiff. relating to

existing Order and any indicative

further applications timeline

that any party might (particularly

bring in due course steps 6 and 7

with liberty to any of the

NO DATE RETURN CALLOVER/ RESULT/ OUTCOME AFFIDAVITS PLAINTIFF’S DEFENDANT’S

MOTION DATE FOR POSITION POSITION

ISSUED MENTION/

HEARING …

party to the indicative

proceedings to apply in timeline in

that regard. Also, an Judgment No.8

Order that the Minister and the impact

for Housing, Local on same

Government and following NPWS

Heritage be added as a request for

Notice Party to the NIS/AA). As

proceedings herein. such, Plaintiff

is entitled to

costs, although

these should

be limited in

circumstances

where there

were no formal

motions before

the Court and

matters were

disposed of by

way of brief

hearings.

The costs of

the affidavit of

Ray Stokes

(item 23) and

Plaintiff’s

submissions

(item 28)

should be not

be awarded to

the Plaintiff.

30 14 April 25 April Motion for entry to Costs 30, 31, 32 and

2022 2022 – Commercial List. should follow 33 are related.

Remote costs of Costs have

remediation been made

Order and be costs in the

awarded to cause. No

the Plaintiff. “cause”,

meaning

parties should

bear their own

costs.

If costs do fall

to be dealt

with, Council

should be

awarded costs

for reasons set

out hereunder,

given that it

was obliged to

bring the

Motion and

having regard

to Plaintiff’s

unnecessary

opposition to

same.

Alternatively,

parties should

NO DATE RETURN CALLOVER/ RESULT/ OUTCOME AFFIDAVITS PLAINTIFF’S DEFENDANT’S

MOTION DATE FOR POSITION POSITION

ISSUED MENTION/

HEARING …

bear their own

costs.

Motion was

required in

light of

indication from

Courts Service

that

Humphreys J.

no longer in a

position to deal

with case in

SID List, but

that it was

open to parties

to apply via

Commercial

List for the

case to return

to the SID List.

Otherwise,

case would

transfer to

Chancery List.

Defendant

considered that

Humphreys J.

was best

placed to deal

with the

outstanding

issues relating

to Order.

Plaintiff

unnecessarily

opposed

application for

entry, filed

affidavit

opposing same

raised a

procedural

impediment

(application to

enter coming

after final

order in

proceedings).

Plaintiff

insisted on

motion

running, before

ultimately

agreeing to

order to admit

to Commercial

List/SID List, in

circumstances

where

McDonald J.

indicated that

if Plaintiff

continued

resistance to

application, he

NO DATE RETURN CALLOVER/ RESULT/ OUTCOME AFFIDAVITS PLAINTIFF’S DEFENDANT’S

MOTION DATE FOR POSITION POSITION

ISSUED MENTION/

HEARING …

would ask

Irvine P. to

direct that the

matter be sent

back to

Humphreys J in

light of his

previous

involvement.

31 Affidavit of Costs See Item 30.

Bronagh should follow Affidavit on

Sawey, sworn costs of behalf of

4 May 2022 remediation Plaintiff

for Defendant Order and be opposing entry

awarded to into

the Plaintiff. Commercial

List.

32 9 May 2022 Order made by Costs See Item 30

– Remote McDonald J should follow

entering proceedings costs of

in the Commercial List remediation

and transferring to the Order and be

Commercial Planning awarded to

and SID List, with an the Plaintiff.

Order that the costs of

the motion be costs

of the cause.

33 23 May 2022 Matter put back to 4 Costs See item 30.

– Remote October 2022 for should follow

mention with liberty to costs of For mention

apply in the meantime. remediation listing following

Order and be entry into SID

awarded to List.

the Plaintiff.

The

appropriate

order is for

parties to bear

their own

costs.

34 3 October Matter adjourned to 24 COSTS Items 34-46

2022 – October 2022. Court AWARDED are linked and

Remote allowed two weeks for FROM 28 have already

the Plaintiff to notify SEPTEMBER been dealt with

the Council of any 2022 TO 21 by the Court.

additional matters they MARCH 2023

wanted included in the BY ORDER OF Per §29(iii) of

Scott Schedule. Court 16 MARCH Judgment

asked EPA and NPWS 2023 No.9: “the

to furnish their list of (Judgment plaintiff be

issues to the Council No.9) awarded costs

within two weeks. for the period

28th

September,

2022 to 21st

March, 2023 as

against the

defendant,

including costs

associated with

the No. 7 and

No. 8

judgments and

any costs

NO DATE RETURN CALLOVER/ RESULT/ OUTCOME AFFIDAVITS PLAINTIFF’S DEFENDANT’S

MOTION DATE FOR POSITION POSITION

ISSUED MENTION/

HEARING …

reserved in

relation to that

period”.

[emphasis

added]

This includes

the costs of the

costs

application

(items 43 and

45)

35 24 October Order made that the COSTS See item 34

2022 – Notice Party excused AWARDED

Remote from participating in FROM 28

the proceedings with SEPTEMBER

liberty to apply and an 2022 TO 21

Order fixing matter for MARCH 2023

hearing on 14 BY ORDER OF

November 2022 at the 16 MARCH

end of the Commercial 2023

Planning List. (Judgment

No.9)

36 14 Order made that the COSTS See item 34

November Second Named Notice AWARDED

2022 – Party be excused from FROM 28

Remote further participation SEPTEMBER

with liberty to apply; 2022 TO 21

Court directed any MARCH 2023

Order on foot of the BY ORDER OF

Defendant’s application 16 MARCH

to approve draft 2023

Remediation Plan (Judgment

without prejudice to No.9)

existing Orders and a

deadline of 19 January

2024.

37 2 December Judgment No. 7 See item 34

2022

38 5 December Adjourned for mention COSTS See item 34

2022 – to 24 January, 2023 AWARDED

Remote FROM 28

SEPTEMBER

2022 TO 21

MARCH 2023

BY ORDER OF

16 MARCH

2023

(Judgment

No.9)

39 12 January Submissions from COSTS See item 34

2023 Defendant AWARDED

FROM 28

SEPTEMBER

2022 TO 21

MARCH 2023

BY ORDER OF

16 MARCH

2023

(Judgment

No.9)

40 20 January Submissions from COSTS See item 34

2023 Plaintiff AWARDED

FROM 28

SEPTEMBER

2022 TO 21

NO DATE RETURN CALLOVER/ RESULT/ OUTCOME AFFIDAVITS PLAINTIFF’S DEFENDANT’S

MOTION DATE FOR POSITION POSITION

ISSUED MENTION/

HEARING …

MARCH 2023

BY ORDER OF

16 MARCH

2023

(Judgment

No.9)

41 24 January Submissions by both COSTS See item 34

2023 – parties. Judgment AWARDED

Remote reserved to 21 March FROM 28

2023. SEPTEMBER

2022 TO 21

MARCH 2023

BY ORDER OF

16 MARCH

2023

(Judgment

No.9)

42 21 March Judgment No. 8 See item 34

2023 issued. Order issued

and proceedings

adjourned to the

Commercial Planning

and Environment List

on 2 October 2023 to

confirm timely

implementation of the

directions as of that

point.

43 14 April Plaintiff’s Submissions Costs See item 34

2023 should follow

costs of Plaintiff’s

remediation written

Order and be submissions

awarded to sought to have

the Plaintiff. “all costs”

awarded to

Plaintiff. These

submissions

are covered by

the order on

foot of

Judgment

No.9.

44 20 April Plaintiff’s Submissions Costs Not clear what

2023 should follow this relates to.

costs of Defendant was

remediation not served with

Order and be any

awarded to submissions

the Plaintiff. dated 20 April

2023.

45 24 April Court directed Costs See item 34

2023 appearance with should follow

agreed dates to costs of

discuss costs. remediation

Order and be

awarded to

the Plaintiff.

46 25 April Court directed costs Costs See item 34

2023 application listed for 5 should follow

May 2023. Liberty for costs of

EPA to bring motion remediation

Order and be

awarded to

the Plaintiff.

47 5 May 2023 Plaintiff makes Costs The Court dealt

application for costs; should follow with costs

NO DATE RETURN CALLOVER/ RESULT/ OUTCOME AFFIDAVITS PLAINTIFF’S DEFENDANT’S

MOTION DATE FOR POSITION POSITION

ISSUED MENTION/

HEARING …

adjourned on costs of relating to the

application of remediation approval of the

Defendant. Order and be remediation

awarded to plan on this

the Plaintiff. date. This is

covered by the

award of costs

in Plaintiff’s

favour on foot

of Judgment

No.9.

48 18 May 22 May Motion issued by EPA Affidavit of Costs should The EPA

2023 2023 for an Order amending David Pollard follow the motion was

the proposed Order of sworn 17 May event of adjourned

21 March 2023 by 2023 with concession by generally,

inserting a provision or exhibit DP1 the including the

requirement that any Defendant. issue of costs.

reliance by Wicklow Affidavit of

County Council on Bernadette Further or in However, there

Section 56 of the Guinan the was no

Waste Management (unsworn) alternative, concession on

Act 1996 for the costs the part of the

disposal of waste from Affidavit of should follow Defendant.

Whitestown at licenced Ted Nealon costs of The

landfills is conditional together remediation Defendant’s

upon a licence review sworn 2 June Order and be position was

application being made 2023 with awarded to fully set out on

to the Agency etc. exhibits TN1 the Plaintiff. affidavit, as to

to TN6 its surprise at

the EPA’s issue

Affidavit of concerning the

David Pollard issue of section

sworn 27 56 powers to

June 2023 direct licenced

with exhibit waste

DP1 operators to

accept waste

Second excavated from

Affidavit of the site. This

Ted Nealon was flagged in

sworn 12 July the draft

2023 remediation

plan submitted

Third Affidavit to the Court

of Ted Nealon and not raised

sworn 5 by the EPA,

October 2023 which sought

with exhibit to be excused

3TN1 from the

hearing into

Second approval of the

Affidavit of remediation

Mary Cahill plan.

sworn 6

November The Plaintiff

2023 with never raised

exhibits any issue with

“2MC1” and the use of

“2MC2” section 56

powers at the

Affidavit of hearing of the

Ted Nealon application to

sworn 16 approve the

November remediation

2023 plan.

NO DATE RETURN CALLOVER/ RESULT/ OUTCOME AFFIDAVITS PLAINTIFF’S DEFENDANT’S

MOTION DATE FOR POSITION POSITION

ISSUED MENTION/

HEARING …

Third Affidavit Ultimately, the

of Mary Cahill EPA agreed to

sworn 21 adjourn the

November motion

2023 with generally, in

exhibits 3MC1 circumstances

to 3MC3 where the

Council said it

Affidavit of would tender

Ted Nealon for space

sworn on 23 within the

November constraints of

2023 with existing

exhibits TN1 licensed

to TN3 capacity. This

avoided the

Affidavit of possibility of

David Pollard further delays

sworn 27 in dealing with

November the motion and

2023 allowed the

Council to

proceed with

the steps

required on

foot of

Judgment

No.8.

Plaintiff used

motion to

ventilated

issues which

strayed well

beyond EPA

motion and,

essentially,

sought to

reargue Court’s

decision to

approve

remediation

plan in part.

Appropriate

order is that

parties bear

their own

costs.

However, if

Plaintiff has

entitlement to

costs (not

accepted), it

lies against

EPA.

49 31 May 12 June Motion issued by WCC Affidavit of Costs should There was no

2023 2023 in respect of the Bernadette follow the “[concession]”

independent expert Guinan event of on the part of

appointment together with concession by the Defendant.

Exhibit sworn the It brought the

31 May with Defendant. application to

exhibit BG1 have the

Further or in independent

Affidavit of the expert

Bronagh alternative, appointed.

Sawey sworn costs

NO DATE RETURN CALLOVER/ RESULT/ OUTCOME AFFIDAVITS PLAINTIFF’S DEFENDANT’S

MOTION DATE FOR POSITION POSITION

ISSUED MENTION/

HEARING …

8 June 2023 should follow Whilst the

costs of appointment of

Seventh remediation the

Affidavit of Order and be independent

Bernadette awarded to expert arises

Guinan sworn the Plaintiff. from Judgment

3 July 2023 No.8, the

with exhibits appropriate

7BG1 to order is no

7BG4 order as to

costs, in

Eighth circumstances

Affidavit of where the

Bernadette Plaintiff

Guinan sworn ultimately

25 July 2023 agreed to the

with exhibit appointment of

8BG1 one of the

Defendant’s

proposed

Third Affidavit experts. This

of Ted Nealon agreement

sworn 5 occurred,

October 2023 without

with exhibit explanation,

“3TNI” after the Court

Booklet of had heard from

Exhibits the

Defendant’s

Second other expert

Affidavit of (…).

Mary Cahill

sworn 6 Accordingly,

November the

2023 with Defendant’s

exhibits expert was

“2MC1” to appointed on

“2MC2” the

Defendant’s

Affidavit of concession.

Sandra Casey

sworn 16 It should be

November noted that

2023 with affidavits

exhibits A sworn on

and B behalf of the

Plaintiff stayed

well beyond

Fourth the issue

Affidavit of relating to

Mary Cahill appointment of

sworn 24 independent

November expert. In the

2023 with event that the

exhibits Plaintiff is

“4MC1” and entitled to

“4MC2” costs re

appointment of

Fifth Affidavit independent

of Mary Cahill expert, the

sworn 30 order should

November exclude costs

2023 with in respect of

exhibit Dr. Nealon’s

“5MC1”. affidavit.

NO DATE RETURN CALLOVER/ RESULT/ OUTCOME AFFIDAVITS PLAINTIFF’S DEFENDANT’S

MOTION DATE FOR POSITION POSITION

ISSUED MENTION/

HEARING …

50 15 June 26 June Motion issued by Notice of Costs This Motion is

2023 2023 Applicant in respect of Motion of should follow listed on 17/18

costs from 19 July dated 15 costs of April and issue

2017 to 28 September June 2023 remediation as to costs

2022 Order and be should be

Affidavit of awarded to determined on

Bronagh the Plaintiff. foot of the

Sawey outcome.

together with

Exhibit sworn

13 June 2023

with Exhibit

BS1

51 12 June EPA motion and Costs should See item 48

2023 Plaintiff’s costs motion follow the

adjourned to 26 June event of

for mention concession by

the

Defendant.

Further or in

the

alternative,

costs

should follow

costs of

remediation

Order and be

awarded to

the Plaintiff.

52 26 June The matter was Costs should No costs arise

2023 administratively follow the in the context

adjourned to 3 July event of of an

2023 by the Court concession by administrative

(email from Registrar) the adjournment,

Defendant. where neither

party obliged

Further or in to attend

the court.

alternative,

costs

should follow

costs of

remediation

Order and be

awarded to

the Plaintiff.

53 3 July 2023 EPA applied for and Costs should See item 48

granted adjournment follow the

event of

concession by

the

Defendant.

Further or in

the

alternative,

costs

should follow

costs of

remediation

Order and be

awarded to

the Plaintiff.

54 17 July 2023 The matter was Costs should See item 48

adjourned for one follow the

week to 24 July 2023 event of

NO DATE RETURN CALLOVER/ RESULT/ OUTCOME AFFIDAVITS PLAINTIFF’S DEFENDANT’S

MOTION DATE FOR POSITION POSITION

ISSUED MENTION/

HEARING …

as Defendant informed concession by

the Court they the

received an Affidavit Defendant.

and wanted time to

consider same. Further or in

the

alternative,

costs

should follow

costs of

remediation

Order and be

awarded to

the Plaintiff.

55 24 July 2023 Motions adjourned at Costs should See item 48

request of Defendant. follow the

event of

concession by

the Defendant

of the EPA

motion.

Further or in

the

alternative,

costs

should follow

costs of

remediation

Order and be

awarded to

the Plaintiff.

56 2 October Listing to confirm Costs should See item 48

2023 timely implementation follow the

of the directions as at event of Principal issue

that point. The matter concession by outstanding

was adjourned for two the Defendant was EPA

weeks on consent. of the EPA motion.

motion.

Further or in

the

alternative,

costs

should follow

costs of

remediation

Order and be

awarded to

the Plaintiff.

57 16 October Defendant applied for Costs should See item 48

2023 and granted follow the

adjournment. event of Principal issue

concession by outstanding

the Defendant was EPA

of the EPA motion.

motion.

Further or in

the

alternative,

costs

should follow

costs of

remediation

Order and be

NO DATE RETURN CALLOVER/ RESULT/ OUTCOME AFFIDAVITS PLAINTIFF’S DEFENDANT’S

MOTION DATE FOR POSITION POSITION

ISSUED MENTION/

HEARING …

awarded to

the Plaintiff.

58 6 November Plaintiff sought Costs should See item 48

2023 adjournment to follow the

address recent event of Principal issue

Affidavit and Affidavit concession by outstanding

due from EPA. The the Defendant was EPA

Court sought to of the EPA motion.

manage the motions motion.

efficiently.

Further or in

the

alternative,

costs

should follow

costs of

remediation

Order and be

awarded to

the Plaintiff.

59 20 Adjournment for one Costs should See item 48

November week on consent follow the

2023 following event of Principal issue

correspondence from concession by outstanding

Defendant dated 17 the Defendant was EPA

November 2023 of the EPA motion.

setting out proposed motion.

revised timelines to

accommodate waste Further or in

removed from the site, the

and proposing that the alternative,

EPA’s application could costs

be adjourned generally should follow

with liberty to re-enter costs of

should any issue arise remediation

in the future. Order and be

awarded to

the Plaintiff.

60 27 EPA motion adjourned Costs should See item 48

November generally with liberty follow the

2023 to re-enter; EPA event of

excused. concession by

the Defendant

of the EPA

motion.

Further or in

the

alternative,

costs

should follow

costs of

remediation

Order and be

awarded to

the Plaintiff.

61 4 December Hearing on scope of Costs See item 49

2023 function of should follow

independent expert. costs of

remediation

Order and be

awarded to

the Plaintiff.

62 15 January Listed for mention but Costs No costs arise

2024 not called. should follow

costs of

remediation

NO DATE RETURN CALLOVER/ RESULT/ OUTCOME AFFIDAVITS PLAINTIFF’S DEFENDANT’S

MOTION DATE FOR POSITION POSITION

ISSUED MENTION/

HEARING …

Order and be

awarded to

the Plaintiff.

63 22 January Court directed that the Costs See item 49

2024 procedures in Step 10 should follow

of Mary Cahill’s Third costs of

Affidavit were to be remediation

carried out by 31 Order and be

March 2024 and awarded to

adjourned the the Plaintiff.

matter to ascertain

availability of

nominees for

independent expert.

64 29 January The Court heard Costs See item 49

2024 evidence from Carol should follow

Connery and Eleanor costs of

Boland. Scott Schedule remediation

as to costs directed. Order and be

Liberty to make awarded to

request for discovery. the Plaintiff.

65 12 February Evidence was heard Costs See item 49

2024 from Sean Mason. should follow

Listing of matters for costs of

the 16th of April. remediation

Directions as to Order and be

contempt motion, awarded to

costs motion, Scott the Plaintiff.

Schedule, duties of

expert document, and

discovery.

Categories of costs issues

43. The 65 separate costs issues break down into the following categories:

(a) reviews of compliance with remediation order;

(b) the Council’s methodology motion, which was adjourned generally with liberty to

re-enter on the application of the Council on the 27th of July 2020;

(c) the motion for entry into the Commercial List, in which costs were made costs of

the cause on the 9th of May 2022;

(d) the EPA motion, which was adjourned generally with liberty to re-enter on the 27th

of November 2023 when the Council conceded the issue advanced by the EPA;

(e) the Council’s motion to appoint an independent expert and related issues;

(f) costs of the Plaintiff’s contempt application;

(g) costs of the costs applications; and

(h) matters falling outside the present applications.

Category A – review of compliance

44. Category A covers Items 2-12 and Items 19-29. In broad terms, we go back to the polluter

pays principle and the question of whether the costs reasonably arose out of the original pollution.

Pollution ought to give rise to remediation which may give rise to court applications to review

compliance with that. All of that should properly be visited on the polluter, in this case the defendant.

45. The council basically accepts that as follows:

“16. On the basis of the rationale for awarding the Plaintiff costs in Judgment No.9, the

Council would accept that these hearings were follow-ons from the primary remediation

order made in July 2019 and that on the assumption that that was the ‘event’ which the

Plaintiff won, the costs of the progress hearings should follow that event. However, the

Council submits that any order awarding the Plaintiff the costs of those hearings should

emphasise for adjudication purposes that the hearings were brief and were of the nature of

‘for mention’ matters.

17. The Plaintiff on occasion filed affidavits in respect of these for mention listings. A

list of the affidavits filed is set out in Exhibit BS1 of the affidavit of Bronagh Saway, the

Plaintiff’s solicitor, sworn on 13 June 2023. None of these affidavits was directed by the

Court and it is not entirely clear to what purpose they were intended to be put. It is

submitted that the Plaintiff’s affidavits were unnecessary. They never grounded any motion

brought by the Plaintiff, although the Court invited the Plaintiff on more than one occasion

to bring such application as it saw fit. The Council submits that any order for costs in respect

of progress hearings should exclude affidavits prepared on behalf of the Plaintiff, which were

never directed and were not prepared for any particular purpose, other than to complain

about the Council’s perceived inaction or use of incorrect methodology in its remediation

approach.”

46. Whether costs should be allowed at a level appropriate to mentions or hearings is a matter

for legal costs adjudication. However such costs properly include the affidavits filed by the plaintiff

as it is reasonably necessary for a plaintiff to put forward its position on affidavit in such a situation.

Mr Nealon’s affidavit for example could not be said to be entirely irrelevant, especially given certain

factors to which we will now come. Indeed generally (although I am not sure whether it is strongly

disputed under other headings) costs will include costs of the affidavits delivered, for the avoidance

of doubt.

Category B – the council’s abandoned methodology motion

47. Category B covers Items 13-18. There are many situations where, if a party brings a motion

and then effectively withdraws it or fails to pursue it, for reasons within that party’s control, the

costs incurred by other parties should be paid by that party. There may be reasons to depart from

that in a particular case but no compelling reasons to that effect arise here.

48. The council’s submission is:

“18. It is contended in the Plaintiff’s submissions that the Council embarked on a ‘re-

investigation approach…in defiance of the Judgments of the Court’. Against this, Ms Guinan’s

third affidavit set out a clear basis as to why a site investigation was appropriate and as to

why the environmental consultants considered that a Tier 3 report was necessary. This was

in the context of the consultants proceeding on the basis that the approach in the EPA Code

of Practice for Unregulated Waste Disposal Sites should be followed. This approach had been

demanded by the Plaintiff, whose solicitors sought confirmation in February 2020 that the

Code of Practice would be adhered to in the remediation. There then followed a scenario

that once the Council flagged its intention to undertake a Tier 3 risk assessment and seek

Court approval of the Detailed Quantitative Risk Assessment (DQRA) tools that it intended

to employ in that regard, the Plaintiff complained that it was completely unnecessary. Whilst

Ms. Guinan’s third affidavit confirmed that the step could be bypassed and the consultants

could proceed to the finalisation of the draft remediation plan, which would include a risk

assessment, it is clear from the affidavits filed by the Council around this issue that the

Council found itself in a ‘Catch 22’ situation: it considered that it is bypassed the Tier 3

element of its own motion, it would face criticism from the Plaintiff, but that if it sought to

undertake the process, it would be equally subjected to the criticism of embarking on an

unnecessary exercise.

19. Against that background, it is submitted that the appropriate step would be to make

no order as to costs on the application to approve the DQRA tools.”

49. This cannot be accepted. First of all, the timeline set out involves significant omission. The

order for remediation was made on 19th July 2017. The council’s failure to operationalise that

properly between July 2017 and February 2020 can’t be explained by a letter from the plaintiff in

February 2020.

50. I had already made clear that delaying remediation to conduct further investigation was a

non-runner given that there had already been much investigation and a lengthy trial. What I said

at para. 302(i) of the No. 3 judgment was:

“(i) A first option is that of requiring further investigation. Such a decision would be a cop-

out at this stage and would only set the scene for a further round of litigation. More

fundamentally, no matter what the situation, further testing can always be suggested in any

such case. The council in the sister case of Fenton successfully argued against the submission

that further testing was an answer there (pp. 69-70). In the present case a further round of

investigation would be a fool’s errand. It would not alter the nature of the risk arising from

the fixed characteristics of the site. The cry of ‘no remediation without further testing’ is

simply another clause of the polluters’ charter.”

51. The council, I’m afraid, effectively ignored that for the first couple of years thereafter. So

instead of following the game plan clearly laid out by the court by getting off to a flying start on the

light turning green, the council steered off the track on the first lap and into the pits, where they

lamented the fact that it was going to take a long time to get going again. Talk about losing

momentum – the fact that they did so on “expert advice” is irrelevant. The effect of that approach

was to delay remediation massively – so much so that almost seven years on from the remediation

order, absolutely no waste whatsoever has been removed. Not a shovel-full. Nothing.

52. The result of that is that we are coming up to seven years from an order for total and

complete remediation which should have been completed months ago. That can’t be without

significant consequences, even if for today’s purposes such consequences are only in terms of costs.

53. The council accepts the “fact that Fehily Timoney have not had regard to historical data

obtained from the site in the preparation of its risk assessments” (third affidavit of Ms Guinan of

22nd July 2020). I have elsewhere pointed out the dissimulatingly rhetorical status of the term

“historical data”. It sounds superficially impressive if one was fortunate enough to be fresh to this.

But firstly the court had already dealt with that issue. And secondly and more philosophically, all

data immediately becomes historic once it is obtained – the present has a poignant habit of becoming

the past. If the objective is to chase “non-historic data” then we are truly in pursuit of a crock of

gold at the end of a rainbow that is always just another horizon away. The whole approach of

effectively disregarding the decisions of the court made after a lengthy trial was irredeemably flawed

from the outset and, even leaving aside any rule of law issues, could have been predicted to result

in massive delay, which is of course exactly what happened.

54. And thirdly let’s not get too abstract - nothing has been removed. So on the facts here

there’s nothing “historical” about previous investigations which showed the presence and extent of

waste.

55. The fact that the EPA code was mentioned in the court’s judgment (e.g., No. 3 judgment

para. 5) does not nullify the express finding that implementation should not be delayed pending

further data.

56. The council rather faintly suggests that a “line” in the No. 3 judgment about no more

investigation is “carrying a lot of weight”. But that wasn’t a throwaway comment. It was not only

part of the ratio but even more critically it went to the curial part of the decision as to what order

would be made. It was a rejection of an order sought by the council to put a hold on remediation

pending further investigation. To dismiss that as just a “line” borders on nihilism – can a court not

even be allowed to make a decision without being told later that it was only a line?

57. But the council is right about one thing – that factor going to the order did carry a lot of

weight. I saw it at the time as central to the overall order made and as absolutely indispensable to

any prospect of completing remediation within the period allowed. I suppose that has been proved

correct.

58. The fact that the court was informed years later doesn’t take away from the critical point

that the judgment wasn’t being followed. The court certainly wasn’t informed of this between July

2017 and the review date of May 2019. Spending two years acting contrary to a judgment and

keeping one’s head down about it is sub-optimal, on any view. And of course there was then much

further delay before things got remotely back on track.

59. The affidavit of Mark Devereaux filed on 24th May 2019 says at para 3 that:

“3. The purpose of this affidavit is to update this Honourable Court as to the progress that

has occurred in relation to the proposed remediation of the Whitestown site since the

proceedings were last before the Court in July 2017.”

60. Whatever else that is, it certainly isn’t any kind of timely reporting about departures from

the court’s decision. If the council had come back to court shortly after the judgment of July 2017

and said that the consultant had suggested no remediation without further investigation, it would

have had to face the problem that I had already expressly and decisively rejected that. People can

decide for themselves how much traction that argument would have got had the council been

courageous enough to come back to try their luck on that, prior to the delay taking place. But, of

course, the council didn’t do that. Instead they let a lot of time pass, brought a motion a couple of

years later, and then effectively abandoned the proposal when the inevitable storm clouds started

to gather.

61. Even if they had come back to court, merely telling the court something isn’t enough – a

court normally makes orders only when someone makes an application. The council didn’t apply for

any amendment to the process directed by the order.

62. The fact that the judgment envisaged that work which inevitably would involve engagement

of a consultant doesn’t create a situation whereby the council can on the advice of the consultant

engage in a process that was expressly rejected by the judgment.

63. The plaintiff says this is “one of the most investigated pieces of land on the island” (see

affidavit of Raymond Stokes filed on 30th June 2020 para. 14). It says the council’s decision to re-

survey the site was to act as if it was terra incognita. That’s the context – no wonder I was sceptical

about more data gathering. Indeed the logic remains – the 2020 data (gathered to overcome the

problem of historical data) is now itself historical, so maybe let’s have more investigation, on the

council’s logic. Any such data will also instantly become historical, so let’s keep going with site

investigations until hell freezes over or Whitestown dump is remediated, whichever first occurs.

64. The plaintiff submits, persuasively, that the only options are as follows (and the council

didn’t disagree, although they did protest that there was an absence of any intention to differ from

the court’s decisions – something the plaintiff no doubt can reserve its position on):

(i) the consultant wasn’t briefed properly;

(ii) the consultant disregarded the brief and the council, being aware of that, failed to cry

halt;

(iii) the consultant disregarded the brief and the council failed to notice this;

(iv) the council and consultant together decided to do something that was contrary to the

court’s judgment, and failed to inform the court for almost 2 years; or

(v) what the council and consultant did was fully compatible with the judgments of the

court.

65. We can rule out option (v). That’s a non-starter – I have explained that above. And no

matter which of options (i) to (iv) apply, there is significant responsibility on the part of the council.

Any one of those four options was egregiously wrong from the start.

66. Nobody should have to re-iterate what has already been decided. Further site investigation

was already ruled out in 2017 for good and solid reasons, mainly the total lack of need for that given

the extensive prior investigation, and the inevitable huge delay it would cause. Both reasons remain

valid and have remained valid at all material times.

67. The overall relevance of the foregoing is that, whether one looks at it on the basis of the

mere fact of abandoning the motion, or on the basis that the motion and the process of further

investigation and delay leading up to it was inconsistent with express findings in the court’s No. 3

judgment, the costs under this heading must be awarded to the defendant.

Category C – Commercial List

68. Category C covers Items 30-33. These were made costs in the cause by order of McDonald

J. on 9th May 2022. The case had already been heard and decided at that point (see the No. 4

judgment) and we were at the stage of enforcing the order, albeit with the procedural wrinkle that

the unimplemented parts of the order may require directions as we go. So ordering that costs would

be costs in the cause after the case has been decided can only mean that the costs should be

determined at the end of the proceedings. It is not clear to me that it is necessary or even

appropriate for another judge to revisit the order of McDonald J., but for the avoidance of doubt I

will expressly order that the parties can re-enter the issue of costs of this issue once the substantive

proceedings (i.e., not including any residual costs issues) are resolved or on consent of the parties,

whichever is earlier.

Category D – EPA motion

69. This covers Items 48-49 and 51-60. As the council submits:

“if it is the case that the ‘event’ would have been the EPA succeeding in its motion (or the

Council successfully resisting it), then no ‘event’ has occurred so as to warrant an award of

costs.”

70. The bringing of the EPA motion was proximately occasioned by the EPA failing to get involved

in the process at an earlier stage and then bringing the motion. The council aren’t responsible for

that. Normally, although there are exceptions, one party wouldn’t be liable for costs occasioned by

an application made by another party. Given that the motion itself has been adjourned, the best

thing to do with the question of those costs is to adjourn those generally with liberty to re-enter

them pending a final order on the EPA motion.

Category E – independent expert

71. Category E covers Items 61-65. While I don’t criticise anybody, there is no doubt that the

issue of the independent expert could have been dealt with much more efficiently.

72. At the level of broad generality, the costs of the expert are ultimately attributable to the

underlying pollution and the need to address it. That suggests that the plaintiff should get the costs

under this heading and I will do that with one exception. The council accepts the general principle

but says that it should be disapplied:

“37. The Council accepts that the appointment of the independent expert flows from the

approval of the remediation plan. Thus, on the basis of Judgment No.9, the Plaintiff ought

to get the costs of the application, unless there are special reasons for departing from that

default position. It is submitted that the Plaintiff’s belated acceptance of one of the Council’s

nominees forms the basis for departing from the rule. Significant court time was taken up

examining the [first candidate] representatives, which would have been avoided had the

Plaintiff indicated a willingness to agree to Arup as the independent person, in circumstances

where the Council first set out its proposals in Mary Cahill’s fourth affidavit sworn on 24

November 2023. In that scenario, if the Plaintiff is entitled to costs, the Veolia Water

principles should apply: had the Plaintiff indicated its agreement to Arup in a timely manner,

the application could have been dealt with sooner and in a single Court sitting rather than

two court sittings. In the Veolia Water scenario, the Plaintiff would be deprived of the costs

caused by the unnecessary elongation of the application, meaning that when a balance

exercise is applied, the appropriate order on this application is that the parties should bear

their own costs.”

73. As regards item 64 (the unnecessary cross-examination), the plaintiff could have focused its

mind much earlier and indicated a provisional willingness to favour Arup, subject to certain evidential

clarifications, prior to the cross-examination of the other candidate’s witnesses, thereby saving cost

and effort in general and the cross-examination of the other candidate in particular.

74. I fear that I didn’t succeed in stimulating any real understanding by Brownfield of the

difficulty under this heading so I will have a final go at explaining it. Firstly, there wasn’t anything

wrong with the cross-examination in itself. It was perfectly competent on its own terms. And it

would have been helpful to the court - had it been necessary for any decision I had to make. The

problem was not with the cross-examination as such but with the fact that it occurred in a complete

strategic vacuum. The plaintiff didn’t apply its mind to what its overall attitude was to the identity

of the expert before deciding to cross-examine the representatives of the first candidate. Had

thought been applied first, the indication of conditional consent to Arup could have been made and

the first hearing could have been saved.

75. This wasn’t a case where negotiations were ongoing and a party has to play hardball until

agreement is reached, when it becomes smiles and handshakes all of a sudden and the court offers

its thanks and congratulations. Negotiations hadn’t even begun when the plaintiff rose to put the

first witnesses through their paces.

76. Nor was this a case where the plaintiff’s attitude markedly changed (for example, if the

plaintiff was sympathetic to one candidate but then changed its mind because some advantage

favouring the other candidate was discovered for the first time in the witness box) in a way that was

causatively based on the cross-examination of the first candidate. The latter exercise was

pugnacious in the time-honoured manner from beginning to end – and certainly by comparison with

the relatively softball questioning of Mr Mason throughout. That isn’t a criticism of cross-examining

counsel. But having sat through it all, and seen and heard the cross-examinations, the plaintiff

wasn’t looking for problems with Arup, and wasn’t looking for good points with the other candidate.

There’s a sense in such situations that you get what you go looking for, by and large.

77. The cross-examination of the first set of witnesses was a waste of time in that context. Had

the plaintiff simply indicated its attitude earlier, that exercise need never have taken place.

However, rather than order costs against Brownfield as sought by the council I will err on the side

of the polluter pays principle and the Aarhus Convention and make no order as to those costs. I am

also conscious that in the end of the day the plaintiff did effectively agree to an order, and one

should try not to disincentivise agreement. But nor should one incentivise unnecessary objection.

On balance, no order as to item 64 is the appropriate order.

78. On a side note, it would also have been helpful to have had notice of the conditional

agreement to Arup, which I only found out about at the end of cross-examination. Context is always

useful, and declining to share context for no good reason, as here, affects the way that a court

absorbs evidence. For example, if that titbit about agreement had been shared with me (as it was

with the defendant) I wouldn’t have been mentally comparing the answers throughout the evidence

to the first set of witnesses’ answers, because that wasn’t a necessary exercise. Of course the

plaintiff wasn’t trying to be unhelpful - it’s more a question of perspective. Indeed counsel in the

present case have been very helpful, which I appreciate, and which is saying a lot because that is in

the context of a List where a high level of helpfulness to the court is the norm. So that’s not criticism,

just part of the court’s ongoing educational mission. It’s just one more illustration of the concept in

advocacy that it’s never too soon to tell the court what you want. However that’s by the way, it isn’t

relevant to the present costs issue.

Category F – costs of the contempt

79. These were not included in the Scott schedule but it was agreed that the court could indicate

a default order which the parties would be free to argue against in the usual way, and I do that

below.

Category G – costs of the costs

80. This is included at item 50 and it was again agreed that the court could indicate a default

order.

Category H – items falling outside the present exercise

81. Item 1 has already been dealt with as have items 34 to 47.

Issue 3 – Contempt-related matters

82. The plaintiff’s contempt motion seeks the following reliefs:

“1. A Declaration that the Defendant is in contempt of the Order of this Honourable

Court of the 19th day of July, 2017 by failing to remove to a licensed waste disposal facility

all waste and all soil or other materials contaminated or potentially contaminated by such

waste from all areas of the site at Whitestown, Baltinglass in the County of Wicklow including

areas that are already the subject of attempted remediation and to appropriately fill and

landscape the site with inert matter sourced elsewhere and to return possession of the site

to the Plaintiff within a period of 78 months from the date of the said Order.

2. In the alternative to the foregoing, an Order recording the finding that the Defendant

is in contempt of the Order of this Honourable Court of the 19th of July, 2017 by failing to

remove to a licensed waste disposal facility all waste and all soil or other materials

contaminated or potentially contaminated by such waste from all areas of the said site

including areas that are already the subject of attempted remediation and to appropriately

fill and landscape the site with inert matter sourced elsewhere and to return possession of

the site to the Plaintiff within a period of 78 months from the date of the said Order.

3. If necessary, an Order that the Chief Executive of Wicklow County Council attend in

person for the hearing of this application.

4. An Order of attachment and committal of the Chief Executive of Wicklow County

Council pursuant to Order 44 Rules 1 and/or 2 and Order 42 Rule 8 of the Rules of this

Honourable Court and/or pursuant to the inherent jurisdiction of this Honourable Court for

breach of the Order of this Honourable Court of the 19th day of July, 2017 by failing to

remove to a licensed waste disposal facility all waste and all soil or other materials

contaminated or potentially contaminated by such waste from all areas of the said site

including areas that are already the subject of attempted remediation and to appropriately

fill and landscape the site with inert matter sourced elsewhere and to return possession of

the site to the Plaintiff within a period of 78 months from the date of the said Order.

5. In the alternative to the foregoing, such Order as to this Honourable Court doth

seem fit to require the Chief Executive of Wicklow County Council to show cause for and to

purge the Defendant’s contempt of the Order of this Honourable Court of the 19th day of

July, 2017.

6. Such further or other relief of a fine, sequestration of assets or otherwise as to this

Honourable Court doth seem fit and meet pursuant to Order 44 Rules 4 and 5 of the Rules

of this Honourable Court and/or pursuant to the inherent jurisdiction of this Honourable

Court.

7. An Order pursuant to sections 57 and 58 of the Waste Management Act, 1996

varying the Order of the 19th of July, 2017 by substituting an Order requiring the Defendant

to remediate the Whitestown site the subject of these proceedings by the removal to a

licensed waste disposal facility or facilities all waste and all soil or other materials

contaminated or potentially contaminated by such waste from all areas of the said site

including areas that are already the subject of attempted remediation and to appropriately

fill and landscape the site with inert matter sourced elsewhere to ensure that there is no

remaining waste on the site within a specified period from the date of the Order by carrying

out specified steps by the dates to be provided in such Order.

8. An Order requiring the Defendant to comply with each and every requirement of

such remediation plan as this Honourable Court shall approve, subject to such variation of

the plan as this Honourable Court may order, but in every respect subject to the overriding

requirements of the Order sought at paragraph 7 above and in particular the steps to be

carried out by the dates thereby specified.

9. In the alternative to the reliefs sought at paragraphs 7 and 8 above, an Order

pursuant to Order 42 Rule 31 providing for the Plaintiff or some other person appointed by

the Court to carry out such remediation of the said site the cost of the Defendant and the

expenses so incurred to be ascertained and to be paid in such manner as this Honourable

Court may direct.

10. If necessary, an Order deeming good the service of the Order of the 19th of July,

2017 on the Chief Executive of Wicklow County Council and on the Defendant.

11. Such further or other or consequential relief by way of Order or direction as to this

Honourable Court doth seem fit and meet to ensure that its Orders are upheld.

11. An Order providing for the costs of and ancillary to this application to be measured

on the highest scale by this Honourable Court or in the alternative to be adjudicated at such

scale by the Legal Costs Adjudicator in default of agreement.

12. Liberty to apply.”

83. While Order 44 speaks in terms of attachment and committal and doesn’t specifically refer

to declarations or findings of contempt, the court must have a broad range of options at its disposal.

Sometimes immediate attachment of a contemnor is appropriate. But there may be situations where

the court wishes to be able to proceed up a ladder of escalation where that is appropriate, beginning

with findings, proceeding if appropriate to declarations, and then perhaps ultimately making formal

orders. One can also note that for a corporate defendant, attachment is not a direct option, but one

can make orders for fines, sequestration or receivership for example, or a moving party can add, or

seek relief against, a natural person who is responsible for the governance of the respondent. Orders

ultimately leading potentially to attachment and committal can be made against that person. Adding

the person as a defendant first is best as it reduces procedural complication.

84. The plaintiff was naturally dismissive of technical defences in terms of contempt. But it

seems to me there are at least two reasons to give those defences some attention - the difficulty of

reversing the contempt process once it gets going and the level of uncertainty in this area of the

law.

85. One point needs to be noted at the outset which is that once the court sets off down the

contempt road, it may not be all that easy to turn back. If, for example, a steadfast contemnor

ends up being committed for civil contempt, one might find oneself months or even years later with

ongoing detention and no readily available off-ramp. It’s only stating the obvious to say that that

is not a theoretical problem for the legal system in general. Obviously that’s not going to arise in

this particular case but it is a danger with the area generally.

86. Some sort of appreciation of that danger is embedded in the partly unwritten folk wisdom of

the courts, which possibly explains why courts can be surprisingly attached to the need for certain

otherwise pointless technicalities being complied with prior to addressing the merits of any contempt

application. One can argue against that of course but there is no perfect answer.

87. Another piece of folk wisdom is that contempt law is a bit of a minefield. Writing a lifetime

ago as Donal O’Donnell S.C., the current Chief Justice said that regular differences of view between

court levels on the issue of contempt is “indicative of an area where the law is unsettled and

unpredictable” (“Some reflections on the law of Contempt”, (2002) 2 Irish Judicial Studies Institute

Journal, p. 87.) The area isn’t any more settled and predictable now, which is another reason why

a court might feel attracted to ensuring that the technicalities are complied with.

88. All that said, one can’t get too carried away with such technicalities. A more bracingly robust

view is set out in Laois County Council v. Scully [2007] IEHC 212, [2009] 4 I.R. 488, [2007] 1 JIC

2304 by Peart J. which is worth quoting at length:

“Mr Bland submits that to commit the respondents for a breach of the order in the

circumstances of this case and in the light of the way the order has been drawn would

amount to an unlawful deprivation of liberty in circumstances where they are charged with

unspecified breaches of an Order that does not direct them to do or not to do any act or

thing. He urges also that if the order has been perfected in a way which does not direct the

respondents to do anything, then they cannot be the subject of an application for committal

for breach thereof, and that it is irrelevant that there may be a failure to have complied with

the intent of the order. He refers to Iberian Trust Limited v. Founders Trust and Investment

Co Ltd [1932] All ER 176 per the judgment of Luxmore J. at p.179 as already referred to

above.

Ms Butler urges the Court to adopt the approach taken by Lord Woolf in Nichols v. Nichols,

and not to permit the Court’s order to be frustrated by the sort of technical arguments being

put forward by the respondents. She points to the fact that the respondents cannot be in

any ignorance of what was required to be done by them in order to comply with the Court’s

order dated 7th April 2006 since it was made by reference to a document negotiated between

their own advisers and the applicant Council. In effect she states that it was a consent order.

Ms. Butler has referred to a number of cases in England which have followed the new

approach taken in Nicholls v. Nicholls [[1997] WLR 314], such as Re: Scriven [2004] EWCA

Civ. 683, Olk v. Olk [2001] EWCA Civ. 1075, and Tuohy v. Bell [2002] 3 All ER 975. All of

these cases deal with committal orders made following breach, rather than the order which

was breached. There is no need to refer to these in any detail. Ms. Butler submits that the

strength of authority in England deriving from these cases supports the view that the time

has come for a robust attitude to be adopted to applications for committal here, where no

prejudice to the contemnor has been shown to exist from any procedural or technical defect

in either the order of the Court dated 7th April 2006 or the Notice of Motion served in order

to ground the application for attachment and committal for breach thereof. While she has

not been able to point to any similar authority in this country, she has referred to a passage

from the judgment of Finnegan P. (as he then was) in Shell E & P Limited v. McGrath and

others [2006] IEHC 108 where the learned judge [said]:

‘Where the interests of justice of the public in general is engaged or where there is a gross

affront to the Court, it would be appropriate for the court to proceed of its own motion to

ensure that its orders are not put at nought. I am satisfied that such a power must be

inherent in the courts. In the words of Judge Curtis-Raleigh: ‘The law should not be seen to

sit by limply while those who defy it go free and those who seek its protection lose hope’’.

Ms. Butler points to the largely technical nature of the defects in the order which have been

found by this Court to have occurred, and even though some exist in the order itself of which

the respondents are said to be in breach of, she submits that nevertheless there is no reason

why the Court’s approach to the present application should be any less effective that that

advocated by Lord Woolf in Nicholls v. Nicholls, given the absence of any prejudice to those

respondents.

... The order as perfected included that

‘The works set forth in the document referred to in Paragraph 2 hereinbefore mentioned be

carried out in accordance with the document headed ‘Remedial Action Plan’ document

reference number GC52 save that the deadline for the completion of the said works be the

29th day of September 2006 and that this document be received and filed and made a rule

of Court and attached hereto as a Schedule’.

The respondents now say that they are not bound by this order since they are not specifically

directed to do anything.

In my view such a statement is an affront to the dignity of the court, and a direct challenge

to the authority of the Court, being a blatant attempt to avoid complying with the

requirements of the Remedial Action Plan which they agreed to and agreed to form the basis

of the Court’s order. It cannot for one moment in my view be contended by the respondents,

given their involvement in the preparation of the document, that they were or are unaware

of precisely what they had to do in order to comply with the order. The matter had been put

back specifically so that what was to be done would be presented to the Court on the basis

of consensus between the parties Court’s [sic]. There is no possibility that the respondents

have been taken in any way by surprise or been prejudiced by any frailty in the way in which

the order made by the Court has been reflected in the perfected order. ...

By the time the respondents sought legal representation from their present legal team, when

the application for attachment and committal was commenced, the only response was to

make submissions to the effect that because of the manner in which the Court’s order was

drawn, they appeared to have been directed to do nothing and that they could not therefore

be held to have breached the order.

It is in such circumstances that this Court now considers that this is not acceptable and that

to accede to such a submission is to enable the respondents to escape their responsibilities

on grounds which are specious, disingenuous and amounting to an abuse of process and an

affront to the dignity of the court.

It seems to me that the change of direction announced by Nicholls v. Nicholls was because

of the supremacy of interests other than those merely of the contemnors, where no prejudice

could realistically be argued to exist to the contemnor. The point is made that there are

interests at stake other than those of the contemnor. There is the interest of the victim, and

there is also the interest of justice and the authority of the Court. Those were family law

proceedings. In such proceedings there can be the interest of children at stake which may

take precedence over mere technical objection.

In the present case there are interests at stake which in my view should take precedence

over mere technical errors which cause no prejudice, real or otherwise, to the respondents.

There is the authority of the Court. There is also the point made by Ms. Butler that these

proceedings arise in the first place as a result of the Waste Directive which has been given

effect in this jurisdiction, and as a result has placed obligations under European law on this

State, and this Court is part of the mechanism by which those obligations are fulfilled.

For this Court to stand by idly by allowing these respondents to claim the benefit of some

infelicity in the manner in which the order of the court has been prepared and perfected,

even though these do not cause any prejudice to the respondents would permit a situation

to exist where this State fails to honour its international obligations in the very important

matter of environmental pollution, and to allow form to triumph over substance, and

therefore over justice.

The scale of the respondents pollution of the lands in question is truly enormous as has been

detailed in the earlier judgment of this Court, and is not denied by the respondents.”

89. I totally agree with all those sentiments of course, and the critical question as Peart J.

effectively identifies is that of the objective interests for whose benefit the order was made. If such

interests are not prejudiced by adherence to technicalities, then one has the option of a more

cautious approach to ensure every formality is observed. On the other hand, if such objective

interests will be so prejudiced, then the technicalities must give way to the substance and therefore

to justice, as Peart J. puts it.

90. Applying that here, the completion of remediation isn’t going to be significantly delayed if I

require the plaintiff to observe all of the procedures before going down the contempt route.

91. The contempt motion is said to be grounded on an affidavit of service which wasn’t put on

ShareFile until mid-way through the hearing. The operative part of that reads as follows:

“3. In or around February 2024, I was requested by the Plaintiff’s solicitors to personally

serve the High Court Order dated 19 July 2017 with Penal Endorsement on the Chief

Executive of Wicklow County Council at County Buildings, Whitegates, Wicklow Town,

A67FW96.

4. On Monday 19th day of February 2024 at 10.00am, I called to the aforesaid address

and personally served the Defendant by delivering unto and leaving with one

Emer O’Gorman, Chief Executive of Wicklow County Council a true copy the High Court Order

dated 19 July 2017 with Penal Endorsement.

5. I say that at the time of such service the said Emer O’Gorman identified herself to

me.”

92. What isn’t disputed is that the order of court that was said to be breached wasn’t served

until after the time for compliance had expired. Indeed it looks as if the attempt to serve wasn’t

even commenced until the day after the time for observance of the order had expired. That is

unfortunately inconsistent with the wording of the penal endorsement under O. 41 r. 8 RSC, which

is meant to warn the addressee to comply prior to the date specified in the order: Century Insurance

Company Ltd v. Larkin [1910] 1 I.R. 91.

93. Sam Collins B.L. in Enforcement of Judgments 2nd Ed. (Dublin, Round Hall, 2019) helpfully

summarises the caselaw as follows:

“5-52 In J. O'G. v Governor of Cork Prison [[2006] IEHC 236, [2007] 2 I.R. 203 at 215],

Peart J. held that ‘[t]here can be no doubt about the absolute necessity to comply in every

respect with the terms of the wording of the penal indorsement set forth in the current Rules,

whether in the Circuit Court or the High Court’.

15-53 In Ulster Bank Ireland Ltd v Whitaker [[2009] IEHC 16], Clarke J. observed as follows

in relation to the requirement for a penal endorsement [at [4.2]]:

‘Such a memorandum [as set out in Ord.41 r.8 RSC] has often in the past been referred to

as a penal endorsement. The sequestration of the assets of a person for failure to obey an

order is a form of enforcement. It is clear from Halsbury’s Laws of England Vol. 9, under the

heading Civil Contempt, that amongst the forms of enforcement that can be used, in an

appropriate case, to enforce a court order which is not obeyed is an order of sequestration.

It is clear from [Hampden v Wallis [(1884) 26 Ch. D. 746.]], that even where it is permissible

to serve an order on a solicitor (such as an order for discovery in a case such as this) the

order must contain the relevant endorsement. In the circumstances I am satisfied that, in

order that a party may be subject to a form of enforcement such as attachment, committal

or sequestration or, indeed, a fine in lieu, arising out of a failure to comply with an order for

discovery, it is, in the ordinary way, necessary that the order concerned should contain what

is now described as a memorandum in the form set out in O. 41, r. 8 of the Rules of the

Superior Courts.’

15-54 Clarke J. confirmed that ‘orders such as sequestration or attachment and committal

are only to be utilised by the court in a clear case’[ [2009] IEHC 16 at [4.4].] and that,

where it is sought to enforce an order by way of an application for sequestration, ‘it is

necessary that the order sought to be enforced must contain the relevant endorsement.’

[[2009] IEHC 16 at [4.7]]

15-55 It is clear that when dealing with an application for coercive relief on foot of a

mandatory order, the court has no discretion to dispense with the requirement for a penal

endorsement. [Ulster Bank Ireland Ltd v Whitaker [2009] IEHC 16 at [4.5] and [4.7] per

Clarke J.; H. v Governor of Wheatfield Prison [2011] IEHC 492 at [17], where Hogan J. held

that ‘in the ordinary course, compliance with Ord. 41 r.8 is mandatory’. See also Hampden

v Wallis (1884) 26 Ch. D. 746.]

15-56 Regarding orders requiring a person to refrain from doing an act (or prohibitory

orders), Clarke J. held as follows in Ulster Bank Ireland Ltd v Whitaker [[2009] IEHC 16 at

[4.5]]:

‘The second question which arises is as to whether there are circumstances in which it is

appropriate for a court to consider an application for sequestration (or attachment and

committal in an appropriate case) notwithstanding the absence of the relevant

memorandum. The relevant jurisprudence [Clarke J. referred to Churchman v Joint Shop

Stewards Committee of the Workers of the Port of London [1972] 3 All E.R. 603 and Husson

v Husson [1962] 3 All E.R. 1056. See also Murphy v Willcocks [1911] 1 I.R. 402] … seems

to support the view that the court retains a discretion to allow enforcement, even where a

properly endorsed order has not been served, but only in cases where the order requires

abstinence from the doing of an act and where the court is satisfied that the person

concerned knew of the order, either by being present when it was made or being properly

notified of its terms.’

15-57 In H. v Governor of Wheatfield Prison [[2011] IEHC 492 at [17]], Hogan J. held as

follows:

‘Order 41, r.8 RSC requires that the relevant court order must contain a penal endorsement

(i.e., a specific warning that the defendant is liable for potential imprisonment) where it [is]

sought to invoke the coercive contempt jurisdiction of this Court. While the court has a

discretion to dispense with this requirement in cases where the defendant is required by

court order to refrain from committing a specific act, in the ordinary course, compliance with

Ord. 41. r. 8 is mandatory: see generally [Hampden v Wallis [(1884) 26 Ch. D. 746]] and

[Ulster Bank Ireland Ltd v Whitaker [[2009] IEHC 16]]. Thus, in the latter case, Clarke J.

refused to take any coercive step such as sequestration of assets in the absence of the

relevant penal endorsement. Whitaker is a powerful reminder of the imperative necessity of

adhering to all procedural pre-requisites to the exercise of the contempt jurisdiction.’

15-58 In Van Dessel v Carty, [[2018] IEHC 626 at [34], see also Reynolds v McDermott

[2014] IEHC 219 at [67]] Allen J. observed that the defendant’s committal was sought

pursuant to his breach of ‘a prohibitive order to which O.41 r.8 has no application. If

authority were required for this proposition it is to be found in Murphy v Willcocks [1911] 1

I.R. 402.’

15-59 Although the text of Ord.41 r.8 RSC appears to require a penal endorsement for all

mandatory judgments and orders, it is clear from the decision in Ulster Bank Ireland Ltd v

Whitaker that the absence of such an endorsement will not be fatal to an application for

relief other than contempt-based remedies. In that case, Clarke J. held as follows [[2009]

IEHC 16 at [4.6]]:

‘It is, of course, the case that in the vast majority of circumstances the appropriate step to

take when a party fails to comply with an order for discovery is to seek to take appropriate

measures within the proceedings such as the striking out of a plaintiff’s claim or a

defendant’s defence. Those procedural remedies can, of course, be enforced without taking

the much more drastic step of seeking attachment, committal or sequestration. There is no

need to include a penal endorsement in order to seek to invoke those procedural remedies.’”

94. So even accepting that on the balance of the not-entirely consistent caselaw, service

(preferably personal) of an order with a penal endorsement prior to expiry of the time for compliance

is not essential for a purely prohibitive order, and is not absolutely essential even for a mandatory

order, such service is at least desirable for any contempt application and particularly in relation to a

mandatory order.

95. The attempt to seek remedies against the Chief Executive is even more flawed. Yes in theory

O. 42 r. 27 RSC does allow a person against whom obedience may be enforced to be liable to the

same process for enforcing obedience as if she were a party. But the concept of the same process

involves the prior service of an order endorsed with the penal endorsement – that wasn’t attempted

here in relation to the Chief Executive in her own capacity (separate from the agreed acceptance of

service on behalf of the council) at all. Even accepting that a third party doesn’t absolutely need to

be added as a defendant first, it is preferable if it can be done, provided that is possible without

unduly prejudicing the objective interests for the benefit of which the substantive order was made.

That wasn’t attempted here either.

96. The plaintiff suggests loosely that elements of the contempt matter could be dealt with even

without the necessary service but we need to go through the reliefs individually.

97. Reliefs 1 and 2 are expressly limited to contempt so don’t arise given the lack of proper prior

service:

“1. A Declaration that the Defendant is in contempt of the Order of this Honourable

Court of the 19th day of July, 2017 by failing to remove to a licensed waste disposal facility

all waste and all soil or other materials contaminated or potentially contaminated by such

waste from all areas of the site at Whitestown, Baltinglass in the County of Wicklow including

areas that are already the subject of attempted remediation and to appropriately fill and

landscape the site with inert matter sourced elsewhere and to return possession of the site

to the Plaintiff within a period of 78 months from the date of the said Order.

2. In the alternative to the foregoing, an Order recording the finding that the Defendant

is in contempt of the Order of this Honourable Court of the 19th of July, 2017 by failing to

remove to a licensed waste disposal facility all waste and all soil or other materials

contaminated or potentially contaminated by such waste from all areas of the said site

including areas that are already the subject of attempted remediation and to appropriately

fill and landscape the site with inert matter sourced elsewhere and to return possession of

the site to the Plaintiff within a period of 78 months from the date of the said Order.”

98. Relief 3 is adjectival to there being a proper relevant application before the court, which is

not the case. Insofar as reliefs 7 and 8 will remains live, the attendance of the chief executive has

not as yet been shown to be necessary for that, but that can be adjourned to await any developments

in relation to those reliefs. Relief 3 provides:

“3. If necessary, an Order that the Chief Executive of Wicklow County Council attend in

person for the hearing of this application.”

99. Reliefs 4 to 6 are also tied to the contempt issue and so more properly require prior proper

service in advance of the expiry of the time limit for compliance:

“4. An Order of attachment and committal of the Chief Executive of Wicklow County

Council pursuant to Order 44 Rules 1 and/or 2 and Order 42 Rule 8 of the Rules of this

Honourable Court and/or pursuant to the inherent jurisdiction of this Honourable Court for

breach of the Order of this Honourable Court of the 19th day of July, 2017 by failing to

remove to a licensed waste disposal facility all waste and all soil or other materials

contaminated or potentially contaminated by such waste from all areas of the said site

including areas that are already the subject of attempted remediation and to appropriately

fill and landscape the site with inert matter sourced elsewhere and to return possession of

the site to the Plaintiff within a period of 78 months from the date of the said Order.

5. In the alternative to the foregoing, such Order as to this Honourable Court doth

seem fit to require the Chief Executive of Wicklow County Council to show cause for and to

purge the Defendant’s contempt of the Order of this Honourable Court of the 19th day of

July, 2017.

6. Such further or other relief of a fine, sequestration of assets or otherwise as to this

Honourable Court doth seem fit and meet pursuant to Order 44 Rules 4 and 5 of the Rules

of this Honourable Court and/or pursuant to the inherent jurisdiction of this Honourable

Court.”

100. Relief 7 is:

“7. An Order pursuant to sections 57 and 58 of the Waste Management Act, 1996

varying the Order of the 19th of July, 2017 by substituting an Order requiring the Defendant

to remediate the Whitestown site the subject of these proceedings by the removal to a

licensed waste disposal facility or facilities all waste and all soil or other materials

contaminated or potentially contaminated by such waste from all areas of the said site

including areas that are already the subject of attempted remediation and to appropriately

fill and landscape the site with inert matter sourced elsewhere to ensure that there is no

remaining waste on the site within a specified period from the date of the Order by carrying

out specified steps by the dates to be provided in such Order.”

101. That is by no means an implausible suggestion but it requires more detailed further

consideration as to the basis of any time extension. I deal with the options below, and I think the

best approach is to adjourn para. 7 for more detailed consideration.

102. Relief 8 is:

“8. An Order requiring the Defendant to comply with each and every requirement of

such remediation plan as this Honourable Court shall approve, subject to such variation of

the plan as this Honourable Court may order, but in every respect subject to the overriding

requirements of the Order sought at paragraph 7 above and in particular the steps to be

carried out by the dates thereby specified.”

103. That can also be adjourned pending the parties’ positions on the question of a long-stop date

extension.

104. Relief 9 is:

“9. In the alternative to the reliefs sought at paragraphs 7 and 8 above, an Order

pursuant to Order 42 Rule 31 providing for the Plaintiff or some other person appointed by

the Court to carry out such remediation of the said site the cost of the Defendant and the

expenses so incurred to be ascertained and to be paid in such manner as this Honourable

Court may direct.”

105. That would be a radical volte face in the approach to date, and I don’t think the threshold

for any order under that heading has been met as yet.

106. Relief 10 is:

“10. If necessary, an Order deeming good the service of the Order of the 19th of July,

2017 on the Chief Executive of Wicklow County Council and on the Defendant.”

107. There is no necessity to deem service good in the sense of the motion. Service was not

effected until the long stop date had expired so even assuming that it needed to be deemed good,

an order to that effect doesn’t solve the plaintiff’s problem.

108. Relief 11 is:

“11. Such further or other or consequential relief by way of Order or direction as to this

Honourable Court doth seem fit and meet to ensure that its Orders are upheld.”

109. I am all for ensuring that the court’s orders are upheld, and I think the best way to manage

that is for the twin tracks set out in this judgment to be followed, namely progressing the report of

the assessor and debating the question of a possible extension of time. So relief 11 can also be

adjourned pending more detailed submissions.

110. There is a second relief 11 (which I will call 11a) which is:

“11. An Order providing for the costs of and ancillary to this application to be measured

on the highest scale by this Honourable Court or in the alternative to be adjudicated at such

scale by the Legal Costs Adjudicator in default of agreement.”

111. Costs as sought at 11a are as set out below under the heading of costs of the present issues.

112. Relief 12 is:

“12. Liberty to apply.”

113. That can certainly be provided for.

114. In such circumstances I consider that the appropriate order is to adjourn reliefs 3, 7, 8 and

11, grant relief 12 and otherwise dismiss the contempt motion.

115. Thus the contempt consequences of the council’s failure to comply with the order don’t need

to be addressed at this point. That doesn’t amount to any form of endorsement of such non-

compliance or acceptance of its various excuses. The plaintiff set out its objections to those potential

excuses, which fell essentially into two categories. Firstly, the dog-ate-my-homework category,

which the plaintiff classifies as ranging from the claim of having done their best, having good

intentions, seeking a fool’s pardon for any misunderstanding of the order, intending to get around

to it in due course like St Augustine of Hippo (Confessions (c400 CE) (1961, Harmondsworth,

Penguin) (Penguin Classics, tr. By R.-S. Pine-Coffin) Book VIII, Ch. VII, p. 169), and so on. Talk

about a polluter’s charter – if these kind of inadequate responses are enough to deter a court from

enforcement of its order then other alleged contemnors need to be taking notes. The second

category of excuse, the weightiest by far, is one based on non-compliance being outside the control

of the defendant. A court would need to give serious consideration to sifting through the different

phases of non-compliance and trying to distinguish between elements that were genuinely outside

the control of a defendant and those that were not.

116. That exercise can be considered in the context of the adjourned parts of the motion or any

other relevant application. In the meantime the long-stop date must continue to be treated as

having expired for all purposes (so any specific directions are without prejudice to that).

117. If we are going to look at extending the long-stop date, there would seem to be three options

in that regard. A first option is a short, technical extension, say of 2 weeks, to allow service of the

order to be formally effected prior to the expiry of the long-stop date as so technically extended.

That could be seen as artificial and also wouldn’t preclude the council from arguing that periods of

the delay were beyond its control.

118. A second option is an extension that is limited to such periods of delay as were determined

to be beyond the reasonable control of the council. That would afford the council credit for time

expired which it had little choice about, while also giving the plaintiff the opportunity to properly

serve the order prior to the extended long stop date. That would involve the court in looking at the

lapse of time and separating the blameworthy (if any) from the non-blameworthy (if any).

119. A third option would be to extend the long-stop date on the basis of disregarding all delay

to date and working out how long it will take to complete the remediation assuming we start now

from where we are. That gives the defendant a windfall benefit for any avoidable lack of speed to

date.

120. For the avoidance of doubt, the second scenario, which one could not rule out a priori, would

be that timelines for the various remaining steps would be set out, but the long-stop date would be

extended not to the end of those steps (which would effectively excuse all delay to date), but only

insofar as delays up to now were genuinely outside the control of the council. That would leave

option the possibility of a further contempt application in due course, which possibility might, on one

view, concentrate the mind. But I note that option just for clarity if it assists and will await the

parties’ proposals in due course.

121. If we are going down the road of considering an extension of time, it would be worthwhile

to prepare a Scott schedule setting out all of the various stages of the delay to date and the parties’

positions as to the degree of the council’s responsibility for each of these. Ideally such a Scott

schedule would have various columns for each step, the date of intended compliance, the date of

actual compliance, the number of additional months at each stage by which the process fell behind

(so that the following step would begin say X months behind, and ended X+Y months behind, and

one would then need to record the figure of Y for that particular step), and then two columns for a

summary of the respective narrative positions of the parties as to the extent of council responsibility.

122. In addition to the issued motion, Ms Stokes for the plaintiff suggests further orders in her

latest affidavit:

“Brownfield has been advised that the following proposed Orders are worthy of consideration

as being consistent with that Order and necessary to secure the imperative of remediation

of the site in accordance with the Order of the 19th of June, 2017 as soon as reasonably

practicable:

(1) An Order pursuant to Order 42, rules 27 and 31 of the Rules of the Superior Court

directing the Chief Executive of Wicklow County Council within three weeks to provide a

written report outlining all steps taken by the said Council to comply with the Order dated

the 17th day of July 2017, said report to be verified on Affidavit.

(2) An Order pursuant to Order 42, rule 37 directing the said Chief Executive on such

date as may be deemed appropriate to attend at this Honourable Court to be examined on

oath in respect of any questions arising from the aforementioned report as may be deemed

necessary and appropriate.

(3) An Order pursuant to Order 42, rules 27 and 31 of the Rules directing the Chief

Executive personally to oversee compliance with the Order dated the 17th day of July 2017

and to provide reports every three months (hereinafter ‘the Stage Reports’) to update the

Court as to the progress made until such time as the Order has been complied with to the

satisfaction of the Court, said Stage Reports to be verified on Affidavit.

(4) An Order directing the expert or experts appointed by this Honourable Court to:

a. review the remediation plan within six weeks to report on the adequacy of the said

plan to secure the purpose of the Order of the 19th of June, 2017 with regard to the three

issues of Areas A to C, Areas D to G and in-filling as identified in Judgment No.8 of this

Honourable Court of the 21st of March, 2023.

b. review the Stage Reports and within four weeks of receipt of same report on whether

they adequately reflect the progress made in compliance with the Order of 17 July 2017.

c. as and when necessary to attend on site to review the progress made and provide a

written report on each such site visit.

d. answer any written questions as put to the expert by either party arising from any

report provided in accordance with this Order.

58. Brownfield has been advised that Orders such as the above are required to

concentrate the mind of the Council at the highest level on the necessity of complying with

an Order of the High Court, and would provide a framework by which remaining phases of

the remediation project can be delivered effectively and expeditiously. We understand that

the other alternatives are to put the remediation in the hands of either the enforcing party

or under the direct supervision of this Honourable Court. Twenty three years after the

‘discovery’ by the Council of this dump in 2001, Brownfield respectfully suggests that the

Council cannot be allowed to continue to dither and dally any longer without supervision or

accountability.”

123. I by no means discount these reliefs but they would need to be sought by formal notice of

motion on affidavit, replied to, and then properly discussed and considered. The liberty to apply can

be used for that purpose if Brownfield is so minded.

Costs of the present issues

124. Unless a party otherwise promptly applies, the default costs order I would suggest on issues

1 to 3 as set out in this judgment is as follows:

(i) Issue 1 – the present judgment resolves any outstanding questions about the expert

that arise from the cost items in Category E. As the plaintiff gets the costs of Category

E with an identified exception, any costs of Issue 1 not included in the Scott schedule

and disposed of by this judgment will be awarded to the plaintiff.

(ii) Issue 2 - The plaintiff has prevailed on a bit more than two and a half of the three

substantive categories of contested costs that I am actually deciding (A, B and E in

part). The other two substantive categories will be adjourned (C and D) but they did

not take up much time overall. A reasonable attempt to reflect all of that as well as

the findings in the judgment would be an award of 80% of the costs of the costs issues

to the plaintiff.

(iii) Issue 3 - As the matter is still to a limited extent ongoing, the costs of the contempt

motion should be reserved.

Current status of motions

125. Having regard to the foregoing I will treat the motions at (ii) to (iv) in the list of motions

earlier in this judgment as being finally disposed of by this judgment and the consequent order. So

going forward the only live motion is the contempt motion at (i), but only insofar as concerns the

specific reliefs not being dismissed. If any party wants to make any other application at a future

time they should bring a fresh motion.

Order

126. The order made on 19th April 2024 was that the 2020 proceedings be adjourned generally

with liberty to re-enter.

127. For the foregoing reasons, it is now ordered that:

(i) the terms of appointment of the assessor and document setting out the duties of an

expert and assessor are approved, as set out in the Schedules to this judgment;

(ii) subject to acceptance of those terms, Ove Arup & Partners Ireland Limited, trading

as Arup, be appointed as an independent assessor under section 59 of the Supreme

Court of Judicature Act (Ireland) 1877 and/or Order 36, rule 41 RSC (as inserted by

S.I. No. 254 of 2016) and/or the inherent jurisdiction of the court;

(iii) the reliefs at paragraphs 3, 7, 8 and 11 (first para. so numbered) of the contempt

motion be adjourned for mention to the next listing date pending submissions by

the parties on the issues relating to the long-stop date identified in the judgment;

(iv) the other reliefs in the contempt motion not otherwise dealt with in this order be

dismissed;

(v) the costs of the proceedings up to today’s date not already finally disposed of by

court order be disposed of as follows:

a. the plaintiff be entitled to the costs (including the costs of written

submissions and certifying for two counsel in respect of all relevant court

applications) of Categories A, B and (other than in relation to Item 64) E as

against the defendant;

b. for the avoidance of doubt such costs will include the costs of affidavits on

behalf of the plaintiff;

c. there be no order as to the costs of Item 64;

d. the parties have liberty to re-enter the issue of costs of Category C once the

substantive proceedings (i.e., not including any residual costs issues) are

resolved or on consent of the parties, whichever is earlier.

e. the costs of category D be adjourned generally with liberty to re-enter;

(vi) unless any party applies otherwise by written legal submission within 14 days from

the date of this judgment, the foregoing order be perfected forthwith thereafter on

the basis that:

a. there be an order for costs (including the costs of written submissions and

certifying for two counsel in respect of all relevant court applications) to the

plaintiff against the first named defendant in respect of

i. the costs of such issues regarding the expert disposed of by this

judgment as are not included in the Scott schedule (if any);

ii. 80% of the costs of the costs issues; and

b. the costs of the contempt issues be reserved;

(vii) there be liberty to apply; and

(viii) the matter be listed for mention on Monday 10th June 2024 with the potential

agenda being:

a. directing timelines for the immediate next steps in the remediation plan

insofar as it has been approved;

b. arrangements for the expert to advise on whether or not to approve the

balance of the remediation plan;

c. fixing timelines (whether binding or indicative) for all remaining steps in the

process;

d. considering whether and if so how to extend the long-stop date;

e. any other issues arising from the live paragraphs of the defendant’s

contempt motion;

f. any other issues arising under the liberty to apply; and

g. the parties’ proposals for the sequence and timing of addressing the

foregoing issues insofar as they arise, preferably on a one-at-a-time basis

in some pre-determined order, if possible.

SCHEDULE I - TERMS OF APPOINTMENT OF EXPERT

THE HIGH COURT

[2008 No. 56 SP]

Between/

BROWNFIELD RESTORATION IRELAND LIMITED

Plaintiff

-AND-

WICKLOW COUNTY COUNCIL

Defendant

-AND-

THE ENVIRONMENTAL PROTECTION AGENCY

AND

THE MINISTER FOR HOUSING, LOCAL GOVERNMENT AND HERITAGE

Notice Parties

Appointment of Arup as Assessor

in respect of

WHITESTOWN REMEDIATION PROJECT PURSUANT TO ORDER DATED 19 JULY 2017

(the “Project”)

SCHEDULE OF TERMS OF APPOINTMENT

1. APPOINTMENT

1 The High Court has appointed ARUP, an independent expert, as Assessor (hereinafter “the

Assessor”), to assist it with matters relating to the Project as identified by the High Court in

Brownfield Restoration Ireland Limited v Wicklow County Council (No. 8) [2023] IEHC 137 and

Brownfield Restoration Ireland Limited v Wicklow County Council (No. 10) [2023] IEHC 712, and

ARUP has accepted the appointment on the basis of the following Terms of Appointment.

2. SERVICES

1. The Assessor shall report at such times and in such manner as may be directed by the court

from time to time on such matters as arise in the proceedings as the parties disagree on and as the

court considers could be assisted by the expert, including what is required to ensure and guarantee

that the remediation plan or any variation thereof shall achieve the objectives of the court’s orders

for the full remediation of the site, in line with the judgments and orders of the court;

3. DUTIES

The following shall be the main duties of the Assessor in assisting the court on foot of their

appointment (based on the document attached to the Schedule hereto, entitled “Duties of Experts”,

which the Plaintiff and Defendant have agreed and the court has approved as constituting the main

duties of an independent expert who has been appointed as an assessor by the court under Order

36, Rule 41 RSC) :

[Text of duties set out here with citations removed]

4. EXTENT OF LIABILITY

1 The Council agrees to indemnify and hold harmless the Assessor against and in respect of

any and all actions, proceedings, claims, demands, judgments, costs, expenses that arise as a result

of the performance by the Independent Expert of the duties or any actions undertaken by them on

foot of its appointment by the High Court, save that the Council shall have no liability to indemnity

and hold harmless the Assessor in the event of any fraud or criminal wrongdoing on their part in

undertaking their duties or any other actions.

5. PAYMENTS

1. The Council shall pay to the Assessor such sums as are properly due to them on foot of their

appointment as approved by the High Court from time to time, based on the hourly rates set out in

the following table:

Arup Employee – name or position Hourly rate

[details provided]

2. Payment of each amount due [less any due deduction of withholding tax] shall be made within

30 days after the High Court approves payment, provided the Assessor has proved that they have

a current tax clearance certificate from the Revenue Commissioners.

6.DISPUTES

1. In the event of any disputes or differences between the parties to the proceedings in any way

concerning and/or relating to the Assessor and/or the Assessor’s functions under the Order

appointing them, the same shall be determined by the High Court.

SCHEDULE II - AGREED AND APPROVED LIST OF DUTIES OF INDEPENDENT EXPERT

APPOINTED AS ASSESSOR UNDER ORDER 36, RULE 41 RSC

PART A – GENERAL DUTIES OF EXPERTS

1. Duty of truthfulness

In oral and written evidence and reports.

2. Duty to comply assist the court

Order 39, Rule 57(1) RSC

“It is the duty of an expert to assist the Court as to matters within his or her field of expertise. This

duty overrides any obligation to any party paying the fee of the expert.”

This duty should be acknowledged in any written reports, as required by rule 57(2) (a).

3. Duty of independence from the parties

Any opinion must be the expert’s own independent opinion, reached without reference to the

interests of any party and without any attempt to persuade the court of the case of any party:

see Cala Homes (South) Ltd & Ors v. Alfred McAlpine Homes East Ltd [1995] EWHC 7 (Ch), Emerald

Meats Ltd v. Minister for Agriculture [2012] IESC 48, Byrne v. Ardenheath [2017] IESC 293.

4. Duty to ascertain or investigate the relevant facts or to clearly inform the court

where this has not been possible

Thus if an expert is only giving a provisional opinion based on limited facts, she is obliged to make

this clear.

Comply with the following or make explicit any non-compliance:

1. ensure that she has been given a full factual background;

2. determine and make explicit whether postulated facts are supported by objective facts;

3. interview all appropriate witnesses, or ensure that she has received their accounts of the

issue in question;

4. conduct a thorough examination of the subject matter of the expertise

5. keep a record (such as a note, a photograph or photocopy) of any material fact that might

be disputed at a later stage;

6. ensure that all material facts are included in his or her written report or otherwise disclosed

to court and all parties, including those that do not support her own conclusions.

5. Duty to identify what her expertise is and apply that expertise in a professional

and informative manner

Provide an explanation of his or her specialised knowledge, as it relates to the case, in an informative

and unbiased manner.

If a particular question falls outside the expert’s own specialist knowledge, he or she should make it

clear to the court and the parties (Connolly v. Kelly 1995 WJSC-HC 1940, [1995] 6 JIC 1501) and

should not offer opinion on such matters.

Provide her evidence/report to the court in a manner likely to be informative to the court.

Disclose the facts, assumptions and scientific methodology on which their evidence is based where

any of these could reasonably be in dispute.

Identify any relevant secondary materials/ academic textbooks/ academic papers relied on and an

indication of whether these represent generally applied principles in the field of study.

Identify where any proposition relied on is contested by other schools of thought if they apply to the

issue and if so provide an explanation.

Where statistical probability is relied upon to explain certain findings, a clear presentation of the

statistics without exaggeration or over-complication.

Distinguish between matters of fact and opinion.

Any opinion must be firmly grounded in the facts of the case and the expert’s own specialisation.

The expert must take reasonable care in the preparation of any oral or written evidence or report

Davie v Magistrates of Edinburgh [1952] S.C. 34:

“Their duty is to furnish the Judge or jury with the necessary scientific criteria for testing the accuracy

of their conclusions, so as to enable the Judge or jury to form their own independent judgment by

the application of these criteria to the facts proved in evidence”.

See also Re Glaxo Group Ltd [2009] IEHC 277 and James Elliot Construction Ltd v. Irish Asphalt Ltd

[2011] IEHC 269.

6. Duty to keep conclusions under review

The duty to provide an objective unbiased opinion applies throughout the trial process.

Any opinion must be subject to revision where new information comes to light and any such revision

must be disclosed.

Anglo Group plc v. Winther Brown and Co. Ltd [2000] EWHC Technology 127, Toulmin, J.:

“An expert should be ready to reconsider his opinion, and if appropriate, to change his mind when

he has received new information or has considered the opinion of the other expert. He should do so

at the earliest opportunity.”

Quoted in Kenneally v De Puy International Ltd [2016] IEHC 728.

7. Duty to co-operate with other parties and experts to the extent directed by the

court

Anglo Group plc v. Winther Brown and Co. Ltd [2000] EWHC Technology 127, Toulmin, J.:

“He should co-operate with the expert of the other party or parties in attempting to narrow the

technical issues in dispute at the earliest possible stage of the procedure and to eliminate or place

in context any peripheral issues. He should co-operate with the other expert(s) in attending without

prejudice meetings as necessary and in seeking to find areas of agreement and to define precisely

arrears of disagreement to be set out in the joint statement of experts ordered by the court.”

Quoted in Kenneally v De Puy International Ltd [2016] IEHC 728.

8. Duty of disclosure

The expert witness must set out any financial and economic interests relating to the case.

Any matters adverse to the proposed conclusions should be disclosed

PART B - ADDITIONAL DUTIES OF COURT-APPOINTED EXPERT

9. Duty to act only pursuant to the directions of the court

10. Duty not to communicate with any party without simultaneously including all other

parties