High Court dismisses plaintiffs' claim against waste company for illegal dumping due to failure to prove ongoing possession of waste.

[2017] IEHC 331

THE HIGH COURT

[2013/10093P]

BETWEEN

GERALDINE HANRAHAN AND COLM HANRAHAN

PLAINTIFFS

AND

GREYHOUND RECYCLING AND RECOVERY

DEFENDANT

AND

RONAN BUCKLEY AND KEVIN FLANAGAN

THIRD PARTIES

JUDGMENT of Mr Justice David Keane delivered on the 26th day of May 2017

Introduction

1. Who bears responsibility for an illegal dump that Laois County Council found on 6 April 2011 at an old quarry on certain lands within

its functional area? The plaintiffs in this case (‘the Hanrahans’) are a widow (‘Mrs Hanrahan’) and her son (‘Mr Hanrahan Junior’). The

defendant (‘Greyhound’) is an unlimited company, engaged - as its name suggests - in the business of waste management.

2. The Hanrahan family farmlands (‘the Hanrahan lands’) are located at Graigueadrisly (sometimes referred to simply as ‘Graigue’),

Rathdowney, County Laois. Mrs Hanrahan owned the lands jointly with her late husband until his death in May 2013 and is now the

sole owner of them. Mr Hanrahan Junior obtained a leasehold interest in the lands from his parents on or about 11 October 2007, but

he claims that, because of a family dispute, he was not in occupation of them between 2009 and the date of his father’s death. The

Hanrahans claim that, on various dates between March and April 2011, Greyhound was responsible for the transportation of waste

material from its facility at Crag Avenue in Clondalkin, County Dublin, to the Hanrahan lands and the illegal dumping of that material

there, without their knowledge or consent.

3. The Hanrahans contend that these actions on the part of Greyhound amount to trespass, negligence and breach of duty (including

breach of statutory duty), nuisance and, for reasons explained below, an interference with Mr Hanrahan Junior’s economic relations

with his own employer. They claim damages (including aggravated or exemplary damages) for those torts, together with three

separate declarations of right and an order pursuant to s. 57 of the Waste Management Act 1996, as amended (‘the 1996 Act’). The

three declarations they seek are: first, that Greyhound dumped waste on the lands between March and April 2011 without lawful

authority and in breach of the 1996 Act; second, that Greyhound is liable to remove that waste from those lands; and third, that

Greyhound is obliged to indemnify the Hanrahans for: (i) the costs they have incurred, or will incur, in respect of the removal of the

waste and the remediation of the lands; and (ii) any liability they may have to any statutory authority arising from the dumping of

that waste on those lands. The Order the Hanrahans seek under s. 57 of the 1996 Act is one directing Greyhound to effect the

removal of the waste material and to remediate the lands.

4. In its defence, Greyhound puts Mrs Hanrahan on proof of her ownership of the lands and denies the lease of the lands in favour of

Mr Hanrahan Junior. Greyhound denies that any waste material was removed from its facility, transported to the Hanrahans’ lands and

dumped there between March and April 2011. It denies that the Hanrahans did not authorise the dumping of noxious material on their

lands or that they were unaware of that activity until so informed by Laois County Council in April 2011. Greyhound denies the loss,

damage, inconvenience or expense claimed by the Hanrahans. In the alternative, it claims that they have failed to mitigate that loss.

In the further alternative, it claims that any such loss was caused by the deceased Mr Hanrahan Senior (the husband of Mrs

Hanrahan and father of Mr Hanrahan Junior). On that basis, Greyhound seeks an indemnity from his estate in respect of the

Hanrahans’ claim.

5. Greyhound advances other specific defences. First, it contends that the Hanrahans are guilty of inordinate and inexcusable delay

or laches in asserting their claim, or of acquiescence in the circumstances giving rise to it, such that their proceedings should be

struck out or they should be deemed estopped from seeking the reliefs they now claim.

6. Second, Greyhound asserts that the Hanrahans are not entitled to the reliefs they claim in circumstances where the High Court

found Mr Hanrahan Junior in contempt of court for failing to comply with an Order of that Court requiring him to remedy the effects of

the dumping of the waste material on the Hanrahan lands. Greyhound contends that this precludes the Hanrahans from obtaining the

declarations they seek because it means that they do not come to court with clean hands.

7. Third, Greyhound pleads that the Hanrahans, or either of them, in concert with Mr Hanrahan Senior or alone, have by their own

wrongful, unlawful or illegal acts brought about or permitted the holding or disposal of the said waste on the lands, rendering the

present proceedings unsustainable in law as contrary to public policy or an abuse of process.

Background

8. Laois County Council (‘the Council’) issued proceedings against the Hanrahans (together with Mr Hanrahan Senior), by originating

notice of motion dated 10 November 2011, seeking orders against each of them pursuant to s. 58 of the 1996 Act that: (a) they

discontinue holding or disposing of waste on the lands; (b) they mitigate any and all effects of the said holding or disposal of waste

on the lands through the excavation and removal of that waste; and (c) that they remedy any and all effects of the holding or

disposal of that waste on the lands by: (i) excavating and removing it; (ii) providing confirmation that that has been done and that no

residual soil contamination remains; (iii) remediating the landscape; and (iv) providing an independent report confirming that the

remediation has been done, following confirmatory sampling at the conclusion of those remedial works (‘the s. 58 proceedings’).

9. According to the evidence adduced by the Council in the said proceedings, the subject site is a former sand and gravel pit on the

Hanrahan lands covering 0.95 hectares of which 0.4 hectares has waste deposited on it. The waste is predominantly municipal solid

waste, the volume of which is assessed at between 960 and 1,840 tonnes. On initial testing, carbon dioxide and methane levels on

the site were found to exceed Department of Environment limits and the waste was found to have the potential to generate a

leachate, which in turn has the potential to migrate to the local groundwater system and cause ‘significant pollution.’ The soils and

subsoils at the site are predominantly sands and gravel with a high permeability. A regionally important karstified (that is to say,

irregular limestone) aquifer is located close to, and potentially extends beneath, the site.

10. In response to an anonymous complaint on 6 April 2011, two authorised officers of the Council immediately attended at the

Hanrahan lands on that date, arriving at approximately 3.40 pm. They observed a farmyard with a shed and surrounding farm lands.

Upon entering the farmyard, they immediately detected a strong, foul smell consistent with waste disposal and observed waste stored

at a location adjacent to the shed in the farmyard. On further investigation, the officers noted tractor type tracks leading from the

yard into the surrounding farmlands. Those tracks led to the top of a field approximately 150 yards from the farmyard, on the other

side of which the officers discovered the subject site. On a preliminary inspection, the officers observed three types of waste: an

area of domestic, processed waste; an area of mixed waste including construction and demolition waste; and an amount of windblown

litter over the site and field generally.

11. On subsequent investigation, the domestic processed waste was found predominantly to comprise shredded plastic of generally

uniform size (originally bottles, food containers, toothbrushes etc) and minor amounts of organic waste, with a strong odour

consistent with municipal solid waste that had undergone processing. An expert report commissioned by the Council concluded that, if

the waste remains in situ, a strong leachate will be generated, and the site will pose a moderate risk to the local groundwater system.

12. At the material time, the family home of Mr Hanrahan Junior was on a site carved out of the north of the folio comprising the

relevant part of the Hanrahan lands (‘the out farm’), adjacent to the farmyard there. Mrs Hanrahan and Mr Hanrahan Senior were

living approximately 1.2 km from the entrance to the farmyard, in a dwelling house with its own separate farmlands (‘the home farm’),

also part of the Hanrahan lands, attached.

13. At approximately 4 pm on 6 April 2011, the same two authorised officers went to the home of Mr Hanrahan Senior and spoke to

him there. Mr Hanrahan Senior stated after caution that he was unaware of any waste deposited on the lands, which were leased to

Mr Hanrahan Junior. Mr Hanrahan Senior gave the officers Mr Hanrahan Junior’s mobile phone number. When an officer succeeded in

contacting him on that number the following day, 7 April 2011, Mr Hanrahan Junior stated, after caution, that he was separated from

his wife and no longer living at the family home at Graigueadrisly. He then stated that he had entered into an agreement with a ‘Mr

James O’Connor’ of a business named ‘Acorn Plant and Machinery Hire’ in ‘Ashbourne, Navan, County Meath’, permitting ‘Mr O’Connor’

to remove sand from the quarry. Mr Hanrahan Junior said that he had not attended the site for a period of four weeks.

14. On the following day, 8 April 2011, Mr Hanrahan Junior met with the officers at the site. There he stated, again under caution,

that the site had been leased for ‘up to seven months’ to ‘Mr O’Connor’ to use as a quarry. He telephoned ‘Mr O’Connor’ in their

presence and invited one of the officers to speak to him. After caution, ‘Mr O’Connor’ agreed to meet the officers at the site at 5 pm

on 11 April 2011. ‘Mr O’Connor’ failed to attend that meeting. The Council’s solicitors wrote to Mr Hanrahan Junior, on 23 August 2011,

seeking further details of ‘Mr James O’Connor’ and ‘Acorn Plant & Machinery Hire’. Mr Hanrahan Junior did not reply. A Companies

Registration Office search demonstrated that there was no company or business registered in that name in the Ashbourne area. There

was a company with a registered office in Cork named Acorn Plant and Machinery Limited but it never commenced trading; no one

named James O’Connor was associated with it; and it was dissolved in 2005. There was a company named Acorn Plant Hire Limited

with a registered office in Dublin that was dissolved in 1995 and did not have anyone named James O’Connor associated with it. The

business name Acorn Plant Hire was registered in 2002 by a business in County Clare but no one named James O’Connor was

associated with it. O’Connor Plant Hire has been registered as a business name by a business in Navan, County Meath but it is

associated with one Andrew O’Connor. It has not been possible to locate a ‘James O’Connor’ in the Ashbourne area through directory

inquiries or internet searches. No evidence of the existence of such a person or such a business has ever been produced.

15. When Mr Hanrahan Junior met with the Council’s authorised officers at the site on 8 April 2011, he informed them that he was

living at his brother’s house in Sandyford, County Dublin, having left the family home at Graigueadrisly after separating from his wife.

However, when the Council’s summons server attempted to serve him at his brother’s address on 18 November 2011, there was no

response. Meanwhile, when a summons server attempted to serve Mr Hanrahan Senior and Mrs Hanrahan at their farmhouse at

Bawnaughra, Rathdowney, County Laois on the same date, Mr Hanrahan Junior was found to be present there. He was subsequently

served there four days later, on 22 November 2011.

16. On 13 April 2011, the Council wrote to Mr Hanrahan Senior as joint owner of the lands requiring him to identify the person(s) who

disposed of the waste on his lands, the nature of the waste, and the person(s) whose waste it was. Mr Hanrahan Senior replied by

handwritten letter dated 18 April 2011. In that letter, he asserted that he was unaware that waste had been placed on his lands until

the Council notified him of it and that he did not know what the nature of the waste was, who put it there, or where it came from. He

concluded by stating that he had been retired from farming for three or four years and that his lands were leased to his son, Mr

Hanrahan Junior.

17. Mr Hanrahan Senior filed an affidavit in the s. 58 proceedings on 6 March 2012 (unfortunately, the copy of that affidavit in the

Hanrahans’ discovery is unsworn). In it he averred on behalf of Mrs Hanrahan and himself that, although they were retired farmers and

the registered owners of the Graigueadrisly farmlands at issue, they had leased the lands in question to their son, Mr Hanrahan Junior,

by lease dated 11 October 2007, and since then they had not been in possession or occupation of them. Although the lands are just

one mile (or a mile and a half) from their farmhouse, Mr Hanrahan Senior emphasised that they were not directly visible from it, that

neither he nor his wife had any reason to be on the lands, and that they did not ‘ordinarily’ pass the lands in the course of their daily

business. Thus, he averred that neither he nor Mrs Hanrahan were aware of any waste being transported to the lands or being

disposed of there. Mr Hanrahan Senior then averred that he was aware that Mr Hanrahan Junior ‘had some form of arrangement with a

third party’ but had been advised that the relevant evidence should more properly be given by his son.

8. The proceedings were heard on 3 May 2012. By Order made on 24 May 2012, the High Court (per Hedigan J.) found that each of

the respondents was a waste holder within the meaning of that term under the 1996 Act and granted all of the orders sought by the

Council under s. 58 of that Act against each of them. The necessary works, including the remediation works, were to be completed no

later than 1 September 2012. A notice of appeal, dated 19 June 2012, against that order was served by a firm of solicitors on behalf

of all three respondents but was later withdrawn on 24 January 2014 in circumstances that have not been explained.

19. No works of remediation were carried out by the respondents.

20. By notice of motion dated 16 April 2013, the Council applied to the High Court for orders of attachment and committal of all three

respondents. The application against Mr Hanrahan Senior ended with his death in May 2013. The Council did not pursue its application

against Mrs Hanrahan, who was then in poor health, on what appear to have been compassionate grounds.

21. Not without some difficulty, the s. 58 Order with the necessary penal endorsement was eventually served on Mr Hanrahan Junior

who then began, for the first time, to engage with the claim against him, entering an appearance in the proceedings on 8 July 2013.

Mr Hanrahan Junior retained a firm of consulting engineers, Michael Reilly & Associates, to draw up a remediation programme and

payment plan (with costings) on his behalf. After some initial works were carried out, it became clear that the costings in the plan did

not take account of a landfill levy, statutorily payable in respect of each tonne of waste removed from the lands and properly

disposed of in a landfill facility. It was, and is, Mr Hanrahan Junior’s case that he is unable to finance the payment of that levy and so

the removal of the waste did not occur, preventing the remediation of the lands. It was also Mr Hanrahan Junior’s case that, should

he be committed to prison for contempt of the s. 58 Order, he has been told that his present employment will be terminated, which he

contends would amount to an interference with the economic relations between his employer and him by Greyhound, as the alleged

dumper of the waste. That aspect of the Hanrahans’ claim appears to have fallen away in that Mr Hanrahan Junior has since left that

employment and is currently self-employed.

22. In the course of his defence to the committal application, Mr Hanrahan identified Greyhound as the dumper of the waste for the

first time (though without then producing any evidence in support of that assertion) in an affidavit that he swore on 31 July 2013,

more than two years after the illegal dump was discovered by the Council. In the same affidavit, he indicated that his legal

representatives had been instructed to issue proceedings against Greyhound. He then sought the adjournment of the application

pending the resolution of those anticipated proceedings. Hedigan J refused that application on the basis that the evidence produced

up to that point in support of that contention was ‘thoroughly unconvincing’ and because it would be an abdication of the

responsibility of the Court to grant an open-ended adjournment in those circumstances.

23. By Order made on 17 September 2013, Hedigan J committed Mr Hanrahan Junior to prison for contempt of court for a period of six

months or such further period as the court might direct unless the appropriate steps were taken to remove the waste and remediate

the lands within a stipulated period.

24. Mr Hanrahan Junior appealed that Order. In judgments given on 14 March 2014 (in a case reported under the title Laois County

Council v Hanrahan & Ors [2014] 3 IR 143), the Supreme Court set the order aside and remitted the Council’s motion for the

attachment and committal of Mr Hanrahan Junior to the High Court for further consideration. At the risk of oversimplification, the

Supreme Court reached its decision on the basis that the form of order that had been made unacceptably blurred the line between

civil and criminal contempt (per Fennelly J (at 162), Laffoy J concurring (at 187)), or, differently put, that the order that had been

made impermissibly conflated the coercive and punitive powers of the court (per McKechnie J (at 186)).

25. At the time of the trial of the present action, the Council had not yet reinitiated that attachment and committal motion before the

High Court.

26. Considering the Hanrahans’ claim that Greyhound is liable to them in damages for the distress, upset, inconvenience and

reputational damage caused to them by the Council’s proceedings against them under s. 58 of the 1996 Act, and by the attachment

and committal application that the Council brought against them during those proceedings, it is important to note certain specific

findings of the Supreme Court. The judgment of Fennelly J, with which Laffoy J concurred, expressly records (at 149) that, while the

Hanrahans (and Mr Hanrahan Senior) had lodged a notice of appeal against the Order of Hedigan J in the s. 58 proceedings, they

subsequently withdrew it. The same judgment further notes (at 163) that Mr Hanrahan Junior had not contested that he was in

contempt of that Order. In a concurring judgment, McKechnie J stated (at 186):

‘My view on the validity of the order does not disturb the underlying finding that [Mr Hanrahan Junior] was guilty of

contempt. In fact, by open admission, he pleads to it. Equally so, it does not disturb the view of the trial judge, one with

which I respectfully agree, that the contempt in question is serious in nature and must be regarded as such.’

Procedural history

27. The plenary summons in these proceedings issued on 20 September 2013, almost two and a half years after the Council’s

discovery of the illegal dump. The Hanrahans delivered a statement of claim on 9 January 2014 and an amended statement of claim on

4 February 2014, principally adding the claim for damages for interference with economic relations already referred to. Greyhound

delivered its defence on 27 May 2014.

28. Each party has made discovery. Yvonne Czajkowski, a solicitor employed by Greyhound, swore an affidavit of discovery on its

behalf on 10 December 2014 (‘the Greyhound discovery’). Mr Hanrahan Junior swore affidavits of discovery on behalf of the Hanrahans

on 2 March 2015 and 26 March 2015 (‘the Hanrahan discovery’). By agreement between the parties, all the documents thus

discovered were admitted in evidence without the necessity for proof of their contents and execution. However, I did not understand

there to be any broader agreement between them that the truth of the contents of those documents was to be considered proved in

the absence of the appropriate direct evidence to that effect or the identification of an applicable exception to the rule against

hearsay; see the discussion of the relevant principles in Delany & McGrath, Civil Procedure in the Superior Courts, 3rd edn, at paras.

20-99 and 20-100.

29. Only at the end of the trial and after some prompting from the Court did the parties address the evidential status of the affidavits

in the s. 58 proceedings, upon which each side had relied liberally for the purpose of either examination in chief or cross-examination

throughout the trial. Each of the parties ultimately acknowledged that the affidavits were to be admitted in evidence by agreement

between them, subject to a proposed qualification on the part of the Hanrahans that, where the viva voce evidence of Mr Hanrahan

Junior at trial conflicts with certain aspects of the affidavit evidence of his own father and of the relevant authorised officer of Laois

County Council in the s. 58 proceedings, only very limited weight should be given to those averments. I will return to that submission

later in this judgment.

30. Although the relevant order was not produced in court, Counsel informed me that, in managing the case, Gilligan J has directed

that the present trial should address the issue of liability only.

31. Counsel for the Hanrahans also informed the Court of the existence of certain third party claims that Greyhound has been given

leave to bring against two persons, Cormac Buckley and Kevin Flanagan, who the Hanrahans later called as witnesses during the trial.

Counsel suggested that there may be motions pending for judgment in default of appearance in respect of those claims, but the

relevant third party notices were not produced and the Court was given no other information concerning the nature or status of

them.

32. Then, after lunch on the second day of the trial, another Counsel purported to appear unattended on behalf of each of those two

third parties, having received a telephone call from a firm of solicitors in County Sligo requesting him to do so. His instructions went no

further than that the firm concerned intended to enter an appearance on behalf of each. Although no papers whatsoever were

produced to the Court in relation to those claims even then, I was informed that Greyhound had been granted leave to serve the said

third party notices by Order of the Court made on 12 May 2015, and had served those notices on those parties shortly afterwards.

33. It appears that, on 10 July 2015, Greyhound issued a motion for judgment in default of appearance against each of the third

parties, originally returnable for 25 July 2015. Either on the return date or subsequently, Gilligan J ordered that those motions be

adjourned to the trial of the action. Counsel for the defendant submits that they have now become superfluous (if they were not

always so) because, having failed to enter an appearance within the time prescribed under the Rules of the Superior Courts, as

amended (‘the RSC’), each of the said third parties is deemed to have admitted his liability in respect of the third party claim against

him, by operation of O. 16, r. 5. of the RSC. There is no suggestion that either third party had entered an appearance within time, nor

that either had brought an application under O. 16, r. 4 of the RSC for leave to appear at any point thereafter. In so far as may be

necessary, the implications of that state of affairs will have to be considered in light of the terms of this judgment.

The evidence

34. The Hanrahans called five witnesses: Mr Hanrahan Junior (the second plaintiff); Michael Reilly (a consultant engineer); Ronan

Buckley (a plant hire/haulage business operator and lorry driver at the material time); Patrick Horan (a lorry driver at the material

time); and Kevin Flanagan (a small contractor and, also, a lorry driver at the material time). Mrs Hanrahan did not give evidence.

i. Mr Hanrahan Junior

35. Mr Hanrahan Junior was the first witness to give evidence. He did so broadly as follows. He lives at the family home in

Graigueadrisly (‘Graigue’) with his wife and their three-week-old child. At the time of these events he was working for a business or

company named Lely Thurles, but is now self-employed with his own automatic milking machine dealership.

36. He grew up on the family farm, which is to say, the Hanrahan lands where the illegal dumping took place. Those lands extend to

100 acres, of which 32 acres comprise the out farm and the remainder comprise the home farm. There is about a mile and a half

between those two parts of the farm, according to Mr Hanrahan Junior. In the s. 58 proceedings, Mr Hanrahan Senior averred that

the distance between the two parts of the farm is one mile, both by road and ‘as the crow flies’, whereas an authorised officer of the

Council has deposed that the farmhouse on the home farm is approximately 1.2 kilometres from the entrance to the farmyard on the

out farm.

37. Mr Hanrahan Senior died on 10 May 2013. The Hanrahan lands are now held by Mrs Hanrahan by right of survivorship. As a farmer,

Mr Hanrahan Junior acquired a seven-year lease of the Hanrahan lands from his parents on 11 October 2007 for a rent of €20,000 per

annum. That lease was executed so that Mr Hanrahan Senior could avail of the then extant Farmers Early Retirement Scheme, which

provided a pension payment to any farmer who availed of it on strict condition that the person concerned ceased agricultural activity

forever, failing which payments would cease and the repayment of all monies already received would be required by way of ‘clawback’.

The Hanrahans also hoped that, through taking over the farm, Mr Hanrahan Junior would be able to avail of the relevant grant under

the Young Farmers Installation Scheme but, due to changes made to the terms of the scheme, that did not come to pass.

38. Mr Hanrahan Junior farmed the lands on a part time basis thereafter, until 2008. He split up with his wife that year, though happily

they are now reconciled and living together once again in the family home with a young child. Mr Hanrahan’s wife did not give

evidence. There is no suggestion of any formal separation proceedings between the couple. Nonetheless, Mr Hanrahan Junior stated

that his father did not take kindly to the rift between his son and daughter-in-law, because he was ‘old-fashioned in his ways.’ The

result, according to Mr Hanrahan Junior, was that his father resumed farming the lands and, despite the existence of the lease and

the presence of his own livestock on the lands, Mr Hanrahan Junior acquiesced in his own effective exclusion from farming activity on

the lands from then on, in deference to his father’s wishes.

39. At first Mr Hanrahan Junior remained in the family home despite the rift with his wife and father. Then he went to stay at his

brother’s home in Sandyford, County Dublin. Mr Hanrahan’s brother did not give evidence. According to Mr Hanrahan, although this is

entirely uncorroborated, his work at that time involved long periods abroad in Holland and England. Mr Hanrahan stated that, in

consequence, there could be ‘a couple of months or more’ between his visits back to the Hanrahan lands. During those visits, which

would occur only if he happened to be passing, he would simply go to the family home, for which he had retained a key. He would visit

his mother ‘now and again’. Mr Hanrahan said that he would very seldom walk the lands on those occasions.

40. Although he does not give a date, Mr Hanrahan Junior says he returned to the Hanrahan lands within three hours of being

contacted by an authorised officer on behalf of the Council concerning the illegal dump as, to the best of his recollection, he

happened to be somewhere in Wexford that day. Mr Hanrahan met with an authorised officer of the Council on site the next day.

Having been cautioned, he gave her his ‘side of the story’. That story was that ‘there was an arrangement with a person named

James O’Connor, regarding the sand pit.’ James O’Connor was ‘the contact person who was going to take sand from the sand pit.’ Mr

Hanrahan Junior never met ‘Mr O’Connor’ but had spoken to him ‘once on the phone 4 or 5 weeks previously.’ ‘Mr O’Connor’ had phoned

Mr Hanrahan Junior to tell him that he was taking sand from the lands. Mr Hanrahan had replied to the effect that that was fine with

him because the lands were his father’s and not his.

41. I pause here to note that this is a significantly different account of Mr Hanrahan’s statements under caution than the one

recorded by the Council’s authorised officers and concerning which evidence was given in the s. 58 proceedings (see paragraphs 13

and 14, above). Mr Hanrahan Junior did not challenge that evidence in those proceedings, despite his undoubted entitlement to do so.

Instead, he seeks to challenge it in these proceedings, although the Council is not party to them. In consequence, the Council has

never had an opportunity to cross-examine Mr Hanrahan on his evidence. Neither of the relevant authorised officers of the Council

was called as a witness by either side.

42. I note further that, insofar as I can see, the first suggestion that it was Mr Hanrahan Senior, and not Mr Hanrahan Junior, who

had entered an arrangement to permit the elusive ‘Mr O’Connor’ to extract sand from the old quarry appears in Mr Hanrahan Junior’s

second affidavit in the committal proceedings against him. He swore that affidavit on 16 September 2013, several months after his

father’s death and almost two and a half years after the events in question. The assertion was then introduced into these

proceedings for the first time in the Hanrahans’ replies to particulars, dated 4 March 2014, almost three years after those events.

43. Returning to the evidence, Mr Hanrahan said that, on visiting the site the following Monday, 11 April 2011, he could at once see

the seriousness of the situation from his perspective and was horrified and flabbergasted. He immediately set out to find out what had

happened.

44. At this point in the evidence, an entirely new and different narrative entered the case. In the second affidavit that he swore on

13 September 2013 in the committal proceedings against him, Mr Hanrahan Junior had expanded for the first time on what he had told

the Council’s authorised officers about the arrangement whereby ‘Mr O’Connor’ had been given permission to draw sand from the old

quarry. He now asserted that it was his father (by then deceased), and not he, who had entered that arrangement with ‘Mr

O’Connor.’ He also now claimed for the first time that, as part of that agreement, after the removal of sand from the quarry, ‘Mr

O’Connor’ was ‘to ensure that the quarry was filled-in with soil and top soil.’

45. I pause briefly to consider that suggestion. The unchallenged evidence of the Council in the s. 58 proceedings (and, by extension,

at trial in this case), was that the old quarry site covers 0.95 hectares of which 0.4 hectares had waste deposited on it. That waste

weighs between 960 and 1,840 tonnes. According to Mr Hanrahan Junior, Mr Hanrahan Senior had reached an agreement with ‘Mr

O’Connor’ that, in exchange for the right to remove some sand from the old quarry, he was going to fill it in afterwards with soil and

top soil. It is very difficult to see the commercial sense in any such arrangement and, hence, very hard to accept it as plausible.

46. The Hanrahans’ position shifted slightly again in certain replies to particulars that they delivered on 4 March 2014. At paragraph

16 of those replies, they plead:

‘[Mr Hanrahan Junior] was, as has already been averred to by him, estranged from [Mr Hanrahan Senior] at the material

time when the “dumping” occurred on the lands. He now understands, however, from his own enquiries that [Mr Hanrahan

Senior] agreed with James O’Connor on behalf of [Greyhound] that a portion of the lands would be filled in with compost

and covered with top soil.’

47. That asserted link between ‘Mr O’Connor’ and Greyhound was never established in evidence and is hard to reconcile with the

evidence given. Once again, it is difficult to see the commercial sense of an agreement whereby ‘Mr O’Connor’ obtains the right to

draw some sand from the old quarry (whether on his own behalf or that of Greyhound, a waste disposal company) in exchange for

undertaking (whether on his own behalf or that of Greyhound) to fill in and level the quarry with compost and top soil (rather than

waste), particularly since the court is left to infer that a reclamation project on that scale was agreed without a written contract or

acknowledgement of any kind and with, or through, a character as ephemeral as ‘Mr O’Connor’.

48. Returning to the evidence at trial, Mr Hanrahan Junior stated that, during his investigations, he spoke to Mr Flanagan. Mr Flanagan

was a person who had trucks and plant. He carried out work as a general contractor in the Rathdowney area. In that capacity, Mr

Flanagan had dug out the foundations for Mr Hanrahan’s family home a few years previously. Mr Hanrahan Senior would have known

Mr Flanagan but not well. Through Mrs Hanrahan as intermediary, Mr Hanrahan Junior had obtained Mr Flanagan’s number from his

father as someone who might be able to assist him in his inquiries concerning the illegal dump.

49. Mr Hanrahan Junior rang Mr Flanagan. Following that conversation, within days (or a short number of weeks) of 6 April 2011, the

two men drove to the Greyhound premises at Crag Avenue, Clondalkin. Mr Hanrahan Junior wanted to speak to the owner or managing

director. In his efforts to force that impromptu meeting, Mr Hanrahan Junior drove up onto the weighbridge and refused to move off

until his request was met. Eventually, a man who identified himself as Cormac Shields arrived to speak to the men.

50. Mr Hanrahan Junior asked Mr Shields numerous questions premised on the assertion that the waste dumped on the Hanrahan lands

had come from Greyhound. Specifically, he asked Mr Shields to identify the nature of the waste and demanded to know what steps

Greyhound was proposing to take to remove it.

51. According to Mr Hanrahan Junior, when Mr Flanagan pointed to the part of the Greyhound premises where he claims his lorry had

been loaded several times with material that he then brought to the Hanrahan lands, Mr Shields said: ‘You will have a hard time

proving it. You know yourselves lads, people get paid off.’ That was the only occasion on which Mr Hanrahan Junior spoke to Mr

Shields.

52. Counsel for the Hanrahans referred to a letter, dated 17 July 2012, from Greyhound’s solicitors to the Hanrahans’ solicitors, prior

to the issue of the present proceedings. A letter of that date (over which no privilege is claimed) appears in the relevant section of

the index to Greyhound’s discovery. Although a copy of the letter was never produced to the Court, Counsel for the Hanrahans

suggested without demur that it refers to ‘our client’s Mr Shields’, thereby indirectly confirming that a person of that name did indeed

work for Greyhound at the Crag Avenue premises at the relevant time.

53. Mr Hanrahan Junior said that, between the date on which the Council notified him of the existence of the dump (7 April 2011) and

the date upon which he received a preliminary letter from the Council’s solicitors in respect of the s. 58 proceedings (23 August

2011), he phoned the number he had for ‘Mr O’Connor’ as many as 100 times, without reply.

54. Mr Hanrahan Junior acknowledged that he did not swear an affidavit in the s. 58 proceedings, although his father did. Mr

Hanrahan’s explanation in that regard is that he didn’t realise that his parents’ solicitors were not representing him also. This

misapprehension appears to have persisted even after the filing of Mr Hanrahan Senior’s affidavit on 6 March 2012 (described at

paragraph 17 above), which flatly contradicts Mr Hanrahan Junior’s evidence in these proceedings in several fundamental respects.

55. In support of his contention in that regard, Mr Hanrahan Junior points out that the firm of solicitors who represented his parents in

the s. 58 proceedings suggested at some point in correspondence with the Council that they were acting for all three respondents

and that those solicitors filed a notice of appeal against the Order made by Hedigan J in those proceedings on behalf of all three

respondents as appellants (which appeal was later withdrawn in circumstances that remain unclear). Be that as it may, it is difficult

to look beyond the recital in the Order made by Hedigan J on 24 May 2012, that the trial of the s. 58 application had come before the

Court ‘in the presence of Counsel for [Mr Hanrahan Senior and Mrs Hanrahan]…, there being no attendance by or on behalf of [Mr

Hanrahan Junior].’ The Hanrahans did not call as a witness any solicitor from that firm to clarify the position for which they now

contend.

56. Mr Hanrahan Junior said that his father was diagnosed with cancer in late 2011 or early 2012, before finally succumbing on 10 May

2013. He stated that the s. 58 proceedings adversely affected their relationship, which is difficult to understand if, as Mr Hanrahan

Junior asserts, he was not involved in either of the two, apparently inconsistent arrangements that were said to have led to them.

The first such arrangement was the agreement that Mr Hanrahan Junior now alleges his father, not he, entered with ‘Mr O’Connor’ to

permit the latter to draw sand from the old quarry. The second, described in more detail below, is the agreement that the Hanrahans

now allege Mr Hanrahan Senior directly or indirectly entered with Greyhound to have the latter supply him with ‘compost’ to fill in the

old quarry with a view to turning it back into arable farmland.

57. In his evidence, Mr Hanrahan Junior next outlined the steps he had taken in an unsuccessful attempt to comply with the s. 58

Order, before going on to address his personal means. It does not seem to me that either of those matters is relevant to any issue I

have to decide.

58. Mr Hanrahan Junior then stated that his reputation has been seriously damaged by the relevant events, which have been widely

reported on the internet and elsewhere. His competitors in the automated milking machinery business have been using that adverse

publicity against him. His lawyers have been in correspondence with the search engine provider ‘Google’, invoking the right to be

forgotten (‘le droit à l’oubli’). His mother, too, has been affected terribly by the proceedings, so much so that she will no longer

answer the door.

59. Mr Hanrahan acknowledged that he is now farming the lands once again.

60. Mr Hanrahan Junior was invited to comment upon, or explain, certain averments in the affidavit that Mr Hanrahan Senior swore in

the s. 58 proceedings. The first was that Mr Hanrahan Senior had been retired from farming for four years in April 2011. The second

was that the Hanrahan lands had been let to Mr Hanrahan Junior in 2007 and that he had been in possession of them since then. And

the third was that Mr Hanrahan Senior was aware that Mr Hanrahan Junior had ‘some form of arrangement with a third party.’ Mr

Hanrahan Junior stated that those averments were false and that his father had made them because he could not then be seen to

have taken back possession of the lands and to be farming them again, as that was inconsistent with his prior and continuing receipt

of a retired farmer’s pension from the Department of Agriculture.

61. It is worth pausing briefly to reflect on this evidence. Mr Hanrahan Junior is now saying for the first time – after his father’s death

- that his deceased father had perjured himself in the s. 58 proceedings in order fraudulently to continue claiming, and to avoid any

clawback of, the retired farmer’s pension and that, in doing so, he had exposed his son to a liability in those proceedings that, had he

been truthful, his son might have been able to avoid.

62. Under cross-examination, Mr Hanrahan Junior denied the suggestion that the lease of the farm had been a sham from the outset.

He stated that he had instructed the firm of solicitors who he understood were then representing both his parents and him to

withdraw his appeal against the s. 58 Order, although he did not explain why he gave them those instructions, which are difficult to

reconcile with the case he now makes. He stated that, after the falling out with his father, he might have had contractors on the

land who were working for him, cutting silage, inspecting livestock and so on, but that his father had resumed the management of the

farm and that he felt he couldn’t visit the lands when his father was there.

63. Mr Hanrahan stated in cross-examination that it would probably have been two or three months prior to his meeting with the

Council’s authorised officer on the site that he was last on the lands and that he noted no unpleasant odour and saw no rubbish there

then. Mr Hanrahan said that, when an authorised officer of the Council gave evidence in the s. 58 proceedings that he had said on

the telephone on 7 April 2011 that ‘it was about 4 weeks ago that he was on the site’, that was a mischaracterisation of what he had

said, which was that it was about four weeks since he had been at the family home. In fact, Mr Hanrahan Junior stated, it would have

been two or three months since he was in the farmyard or on the lands adjacent to the family home, from which – on 6 April 2011-

waste covered tracks were found to lead across a rubbish strewn field to the old quarry.

64. I am obliged to pause here to note that the relevant evidence had never been put in issue by any of the respondents, including

Mr Hanrahan Junior, during the s. 58 proceedings. At the risk of restating the obvious, the Council is not a party to these

proceedings.

65. Mr Hanrahan Junior went on to state in cross-examination that ‘Mr O’Connor’ would have telephoned him after making an

arrangement with his father concerning the old quarry, and that he (Mr Hanrahan Junior) knew nothing about the commercial end of

that arrangement, save that he was able to inform the authorised officers that the quarry had been leased to ‘Mr O’Connor’ for a

period of up to seven months from a date approximately four weeks previously. Mr Hanrahan said that ‘Mr O’Connor’ had given him the

name ‘Acorn Plant and Machinery Hire of Ashbourne, Navan, County Meath’ and that ‘Mr O’Connor’ would have got his mobile phone

number from his father. Mr Hanrahan Junior believes that the ‘third party’ referred to in his father’s affidavit is ‘Mr O’Connor’.

66. Mr Hanrahan Junior stated that anyone who knew his father would know that he would not knowingly allow anyone to dump waste

on his land. I cannot here refrain from observing that the force of that assertion, which might otherwise be viewed as an affecting

demonstration of filial piety, is strongly undermined by Mr Hanrahan’s earlier evidence to the effect that his now deceased father had

broken the terms of the lease between them; had then perjured himself by averring that the said lease was still in effect (and that Mr

Hanrahan Junior was still in occupation of the lands); and had done so in order to conduct a fraud upon the Department of Agriculture

by continuing to claim a retired farmer’s pension to which he was no longer entitled and by concealing his obligation to repay the

pension payments that he had already received.

67. This might also be an appropriate point in the narrative to reflect on the inherent implausibility of the assertion that any sensible

farmer or landowner would grant access to his or her lands for a commercial purpose to a stranger without any prior or existing

commercial, social, community or family connection whatsoever, simply based on the provision of an unverified (and unverifiable)

name, address and mobile phone number.

68. Mr Hanrahan Junior disputed the suggestion that he was present in his parents’ farmhouse either when they were served with the

s. 58 proceedings on 18 November 2011 or when he was served with them on 22 November 2011, stating that he would, in fact, have

been in his parents’ adjacent farmyard at the time. It is difficult to know what turns on that distinction, given Mr Hanrahan Junior’s

evidence that he was at that time excluded from all farming activity on the Hanrahan lands and very rarely present upon them.

69. Counsel for Greyhound put to Mr Hanrahan Junior the unchallenged evidence of the Council’s authorised officer concerning the

estimated number of vehicle movements involved in bringing the waste to the site. It will be recalled that between 960 and 1,840

tonnes of waste were found there. The authorised officer averred that articulated lorries bringing waste to Council landfill sites carry

a maximum load of 23 tonnes each. If such vehicles were used to bring the larger estimated amount of waste to the site, that would

entail 80 large vehicle movements to and from the site. Smaller trucks carrying 16 tonne loads would require 115 such trips to and

from the site. In fact, as we shall see, one of the witnesses called by the Hanrahans gave evidence that he delivered several eight-

tonne loads from the Greyhound premises in Clondalkin to the site. If each of the loads brought to the site was that weight, then as

many as 230 round trips would have been necessary to deposit all the waste found there. To that figure would have to be added the

number of further movements required to bring the necessary tractor(s) or track machine(s) to the site, and to remove them from it

subsequently.

70. Mr Hanrahan Junior said that, despite the required level of vehicle movements at, and around, the Hanrahan lands, and all the

associated noise, fumes, odour and litter, he had never become aware of the relevant activity and no one in the locality had brought

it to his attention.

71. Under cross-examination, Mr Hanrahan Junior went on to state that he became aware that Greyhound was the dumper of the

waste within a week of the discovery of the illegal dump on 6 April 2011. It appears to be common case that the solicitors for Mr

Hanrahan Senior and Mrs Hanrahan (and, perhaps, also at that time Mr Hanrahan Junior) first wrote to Greyhound on 27 June 2012,

over a year later, asserting that it was responsible for the dumping of the waste, which elicited a letter in response from Greyhound’s

solicitors, dated 17 July 2012, denying that claim (albeit that a copy of neither letter was shown to the Court).

72. As noted previously, the first time that the Court in the s. 58 proceedings was apprised of that claim was in an affidavit sworn by

Mr Hanrahan Junior on 31 July 2013 in opposition to the Council’s application for his committal to prison for failure to comply with the

Court’s Order of 24 May 2012. It was then more than two years after the discovery of the illegal dump, more than eighteen months

after the institution of the s. 58 proceedings, and more than a year after the Court made its Order in those proceedings. Mr Hanrahan

stated in evidence that his failure until 7 September 2012 to bring the existence of that allegation to the attention of the Council, and

his failure to respond to the Council’s subsequent request for further information, is the fault of the firm of solicitors that he believed

was then representing him, because he brought it to that firm’s attention at the first opportunity. However, the Hanrahans did not

adduce any evidence to corroborate that excuse.

73. Mr Hanrahan Junior later made the quite extraordinary additional claim that he had in fact brought the relevant information to the

attention of an authorised officer of the Council at the time of the initial investigation into the illegal dump, but that she had failed to

record it and did not subsequently acknowledge it in either the High Court or Supreme Court. I say ‘extraordinary’ because no such

claim was made by Mr Hanrahan Junior, or any of the respondents, in evidence during either the s. 58 proceedings or the committal

proceedings that followed.

74. Mr Hanrahan Junior then suggested for good measure that, during his Supreme Court appeal against the committal order, that

Court had criticised the Council for failing to do more to identify the dumper of the waste on the Hanrahan lands. No such criticism is

evident in any of the judgments given on that appeal. On the contrary, McKechnie J states in his judgment (at 173) that the Council

had been unable to confirm the identity of the actual perpetrators of the dumping ‘[d]espite…the thoroughness of its work and the

obviousness of its commitment.’

75. Mr Hanrahan Junior went on to state, entirely inconsistently, that the reason for the relevant delay was that he was anxious not

to disclose the identity of the dumper until he was satisfied that he had as much evidence as possible in his possession to corroborate

that claim. That assertion is difficult to evaluate, as Mr Hanrahan Junior did not provide any explanation concerning which, if any, part

of the evidence given on the Hanrahans’ behalf at trial was not available to him in, or shortly after, April 2011.

76. Finally, in re-examination, Mr Hanrahan Junior stated that it was important to note that there were a couple of ditches between

his family home and the adjacent farmyard and lands, comprising a landscaped ditch around the house and another high ditch around

the back of the shed in the farmyard. There is a hill between the quarry, on the one hand, and the family home and farmyard to the

north, on the other, so that the quarry is not visible from either the farmyard or the family home. Moreover, there are hedges on both

sides of the road beside the farmyard. While that is no doubt true, it does not go very far to explain how activity on the scale in

question, both on the road to and from the farmyard and between the farmyard and the old quarry, with all of the attendant noise,

fumes, odour and litter, could have passed completely unnoticed by persons in the vicinity generally and by the occupant or

occupants of Mr Hanrahan Junior’s family home, in particular.

ii. Mr Michael Reilly

77. The next witness called by the Hanrahans was Michael Reilly. He is principal in the firm of Michael Reilly & Associates, consulting

engineers. In July 2013, he was retained on behalf of Mr Hanrahan Junior to advise him in relation to compliance with the Order made

in the s. 58 proceedings. Mr Reilly agreed to act as project manager of the necessary remediation works. In that context, he in turn

retained Mr Conor Walsh, an environmental and waste management consultant, of SLR Consulting Ireland, and Mr Donal Flannery, a

health and safety consultant, of Flannery Health and Safety Limited. Neither of those two gentlemen gave evidence.

78. Mr Reilly gave evidence, broadly, as follows. The old quarry is not visible from Mr Hanrahan Junior’s family home or the farmyard

adjacent to it because there is a hill in between. The distance between the quarry and the shed in the farmyard is approximately 400

metres. Mr Reilly did not comment directly on the authorised officer’s assertion that the top of the field (which I take to be the brow

of the hill), from which the old quarry is directly visible, is 150 yards from the farmyard in which the shed is situated. The house,

farmyard and road are not visible from the old quarry and vice versa. The house and farmyard are well screened.

79. The old quarry contained sand. That sand was fine, rather than sharp – a ‘sea’ rather than a ‘river’ type of sand. It was not

suitable for building purposes. Being fine, it is kind to animals, and such sand is often used in equestrian arenas.

80. Mr Reilly stated that it is difficult to know how much of the sand and soil beneath the waste has been contaminated by leachate.

Sand is a very porous or permeable material. For that reason, he suggested that the waste removal plan he had formulated on behalf

of Mr Hanrahan Junior had to allow for significantly greater potential vehicle movements than would have been involved in the deposit

of the waste. Extraction of the waste is also more difficult than its deposit because the downhill movements of laden vehicles are

more challenging than uphill ones. It is difficult for a large articulated vehicle to brake on a grass downslope (there being no roadway

of any kind between the farmyard and the old quarry), creating the risk of a jack-knife. I pause here to note that this seems a slightly

peculiar observation, since all of the evidence in the case (from both the Council’s witnesses in the s. 58 proceedings and the

Hanrahans’ witnesses at trial) is that the waste appears to have been transported no further than the farmyard by truck and to have

been brought up the hill in the field (and down the other side to the old quarry) using tractors or track machines, or both.

81. Mr Reilly acknowledged that he was last on the lands approximately two years prior to giving evidence. He identified the waste

that was on the site then (and which it is common case remains on the site now) as mixed municipal waste, often referred to as

‘fines’ or ‘compost’, It is a very fine waste, a by-product of waste disposal. Mr Reilly understands that there are about nine waste

plants in the country capable of converting household and light industrial waste into that form and that the Greyhound premises at

Crag Avenue, Clondalkin is one of them. The nearest plants to the Hanrahan lands that carry out that process are the said premises in

Clondalkin, South-West Dublin and, just beyond that, a plant in Ballyfermot, West Dublin.

82. The waste concerned is a residue and requires to be taken to an approved landfill. Mr Reilly stated that, to a layperson, it would

not have been immediately discernible what it was. It is glutinous in nature, dark grey in colour, and often has steam rising from it. Mr

Reilly did not say how a ‘layperson’ is to be defined in the context of dealing with such waste.

83. Mr Reilly stated that he was involved in the preparation of the Hanrahans’ discovery. That discovery included a booklet of ‘delivery

dockets’, each headed ‘Ronan Buckley, Haulage and Plant Hire, Castlemitchell, Athy, County Kildare’ (‘the Buckley dockets’). That

booklet records various deliveries, approximately 32 in total, between September 2010 and April 2011, in respect of which Greyhound

is recorded as the customer.

84. Mr Reilly was then referred to the schedule to the Greyhound discovery. It lists a very substantial number of weighbridge dockets

in respect of outgoing movements from Greyhound’s Crag Avenue premises over the period March and April 2011. Mr Reilly had been

involved in the inspection of the relevant documents at those premises on behalf of the Hanrahans. None of the deliveries recorded

there corresponded with any of the deliveries recorded in the Buckley dockets. Though not a graphologist, Mr Reilly expressed the

view that Ronan Buckley’s signature on the relevant Buckley dockets is similar to his apparent signature on the Greyhound records of

certain other loads that he collected from the Crag Avenue premises. Mr Reilly had custody of the original Buckley dockets before he

carried out the inspection of the Greyhound discovery.

85. Mr Reilly noted that the Hanrahans have also discovered two other weighbridge dockets from Greyhound that were not contained

within Greyhound’s own discovery. Mr Reilly understood that these are dockets of the kind that Greyhound issued to drivers who did

not have their own docket book with them. Mr Reilly understood that the Hanrahans had obtained those two dockets from Mr Buckley.

They each record loads on ‘11/09/11’ or, according to Mr Reilly, more probably, ‘11/04/11’, depending on how you decipher the

handwriting of the unknown author. Each describes the material concerned as ‘compost’. Beside the space on each docket for the

customer name is, what appears to be, the vehicle registration number ’06 TN 3821’.

86. Under cross-examination, Mr Reilly conceded that he had no direct knowledge of who deposited the waste on the Hanrahan lands

and, to that extent, could not assist on the liability issue.

87. Mr Reilly was reluctant to admit that the amount of time the waste is permitted to remain on the site is in any way proportionate

to the risk of leachate causing pollution, which he said depends to some extent on other factors such as the prevailing weather and

the nature of the waste material concerned. Ultimately, he did concede that there must be a broadly proportional relationship in that

regard.

88. Mr Reilly conceded that any information concerning the identity of the person dumping the waste was relevant information that

should have been passed on to the Council immediately.

89. Mr Reilly said that there was no odour detectable when he visited the site in 2013. He pointed out that the strong, foul smell

evident to the Council’s authorised officers when they visited the farmyard on 6 April 2011 was attributable to the consignment of

waste that they observed deposited beside the shed there on that date. He did not offer a view on the extent to which the strong,

foul smell associated with the practice of depositing such waste at that location for onward transportation to the old quarry, would

have been evident to persons on the adjoining roadway or in Mr Hanrahan’s adjacent family home.

90. Mr Reilly stated that the farmyard was surrounded by a high concrete wall into which a solid gate from the roadway was set. Mr

Reilly did not explain how that evidence is to be reconciled with his acknowledgement that, in April 2011, a gap was evident in the

hedge at one side of the farmyard, from which gap waste-strewn tracks in the adjacent field led up the hill and down to the old

quarry, surrounded by wind-blown litter. Nature had taken its course and those tracks had disappeared when Mr Reilly visited the site

two years later. Mr Reilly acknowledged that the tracks in the photographs he was shown that were taken on 6 April 2011 appeared

to have been made by a tractor type vehicle and were not consistent with those of an articulated lorry. He conceded that tracks

visible in other photographs taken at the time were consistent with those of a track machine of some kind.

91. Mr Reilly conceded that, during his visit to Greyhound’s Crag Avenue premises to inspect the relevant weighbridge documents, he

did not visit the waste processing area and his evidence concerning the nature of the waste processed there is entirely based upon

material he has read, as opposed to his own direct knowledge.

92. Mr Reilly further acknowledged that he had no direct evidence to give concerning the creation of the Buckley dockets.

93. In re-examination, Mr Reilly said that he did not believe there would have been much other traffic at the material time on the

narrow country road on which the out farm and Mr Hanrahan’s family home are situated. However, he acknowledged that the road

runs in a broadly east-west direction at a location east of Templemore, south-west of Rathdowney, north-west of Johnstown and

Urlingford, and not far west of the M8 national motorway. There was no evidence of any survey of traffic frequency on the road.

Whether traffic movements on that road are frequent or infrequent, it is difficult to see how they are capable of supporting the

Hanrahans’ professed ignorance concerning the illegal dumping of substantial quantities of waste on their lands. If the relevant

country road is, indeed, a narrow and normally very quiet one, then it is hard to understand how the significant movement of

articulated lorries, tractors and low-loaders carrying track machines could have occurred entirely unnoticed by those living in the

immediate vicinity. If, on the other hand, the road is more frequently used, then it is scarcely credible that all of that activity

occurred unnoticed in the locality generally and, hence, that it occurred without being brought to the attention of the Hanrahans.

iii. Mr Ronan Buckley

94. The third witness to give evidence was Ronan Buckley. His evidence was as follows. He had not known Mr Hanrahan Junior until he

was contacted by him about these proceedings. For six or seven years, he had run a haulage and plant hire business, which ceased

trading two or three years ago because of a downturn in business due to the adverse economic climate. As a result, he lost

everything. In 2011, he had four wagons and three or four drivers working for him. He also drove himself.

95. He did business with Greyhound and dealt with Mr Cormac Shields in that connection. Cormac Shields would contact him by

telephone with details of loads and destinations. In response, Mr Buckley would go himself or send a driver. If neither he nor any of his

drivers was available, he would often subcontract work to Kevin Flanagan.

96. The only work Mr Buckley did for Greyhound involved picking up loads from its Crag Avenue premises and delivering them wherever

they directed him to. The procedure was that, on arrival, he would get his empty truck weighed at the weighbridge and then proceed

to an enclosed area within the facility. He would already have received his instructions concerning the destination to which the load

was to be delivered. He would reverse into the shed and his truck would be loaded from the side by a diesel-powered loading shovel,

while he remained waiting in the cab. On the way out, he would return to the weighbridge, where his vehicle would be weighed again.

The difference between the first and second weights recorded would give Greyhound and Mr Buckley the load weight.

97. At that point, Mr Buckley would give the man at the weighbridge his delivery docket booklet to fill out and sign. Each page in the

delivery docket booklet was in triplicate. The man at the weighbridge would tear the top (white) triplicate sheet out of the booklet,

ostensibly for Greyhound’s own records, before returning the book to Mr Buckley, together with a printout from the weighbridge that

Mr Buckley would retain to assist in the preparation of his own invoices. The second (yellow) triplicate sheet would be clipped to the

relevant invoice when Mr Buckley was billing Greyhound at the end of the month, and the final (blue) triplicate sheet is the one

retained in the booklet for Mr Buckley’s own records.

98. Each ‘delivery docket’ in the booklet is separately numbered and contains spaces to be filled in with the following information: (i)

customer; (ii) order no.; (iii) site; (iv) material; (v) tons; (vi) truck reg.; (vii) driver; (viii) date; and (ix) ‘signed/received by’. The foot

of each docket bears the printed legend ‘All Loads Must Be Signed For On Delivery.’

99. Mr Buckley said that in relation to the Buckley dockets at issue in this case, it was his practice to get the Greyhound weighbridge

operator to sign them in the space marked ‘signed/received by’, even though Greyhound was the consignor and not the consignee or

recipient of those loads. Mr Buckley stated that this was done because there was never anyone present on the Hanrahan lands to

sign for those loads on delivery. When asked to comment on the first of the Buckley dockets, Mr Buckley said that the relevant load

would not have gone to the Hanrahan lands because the entry on it, opposite the word ‘material’, is ‘1 load of plastic’, and no loads of

plastic were delivered to the Hanrahan lands. According to Mr Buckley, to the best of his recollection that load ‘could have gone

anywhere.’ The same was true of the load referred to in the second docket in the series, because the material concerned is described

as ‘1 load of rubble’. That, too, must have gone elsewhere for the same reason. The remainder of the loads covered by the relevant

dockets are described as ‘compost.’ According to Mr Buckley, the date entered on the docket by the weighbridge operator in each

case would be the date of consignment, not the date of delivery, although consignment and delivery would normally occur on the

same day.

100. Mr Buckley said that he would have had many more similar delivery docket books. However, when he lost his business, he had to

move out of his house into an apartment. During that process, he lost everything. He was lucky to discover the delivery docket book

at issue. He found it purely by accident. It is the only booklet of dockets that has survived.

101. When asked to comment on the two Greyhound dockets discovered by the Hanrahans, Mr Buckley stated that those were

dockets that Greyhound provided at the weighbridge to drivers who had neglected to bring their own docket books. He had found the

relevant dockets at home.

102. Mr Buckley said that he has known Mr Flanagan for a good few years. At the relevant time, Mr Flanagan had people working for

him and he was driving himself. Cormac Shields asked Mr Buckley to get a place ‘to deposit stuff.’ Mr Buckley asked Mr Flanagan if he

knew of anyone who would take it. Mr Flanagan rang Mr Buckley later with the phone number of Mr Hanrahan Senior. Mr Buckley

passed it on to Mr Shields, saying ‘this man might take compost off you.’

103. Considering the Council’s evidence in the s. 58 proceedings that no material change occurred at the dump site after it was first

discovered by the Council’s authorised officers at approximately 3.40 p.m. on 6 April 2011, Counsel for the Hanrahans asked Mr

Buckley to comment on those delivery dockets for loads of ‘compost’ apparently consigned on or after that date. There appear to be

five in all; one dated ‘6/4/11’; two dated ‘7/4/11’; and two dated ‘8/4/11.’ Insofar as it was suggested that the two Greyhound

dockets were dated ‘11/4/11’, it is noteworthy that many persons were present on the site that day to carry out investigations at

the instigation of the Council. Mr Buckley said that he could not comment on the specific date of any delivery.

104. Mr Buckley stated that the loads that he and Mr Flanagan had done combined would not amount to 70 in number. He said that,

in relation to the loads that they did do, they were directed by Cormac Shields of Greyhound who told them that the material was

‘compost’.

105. Mr Buckley stated that Mr Flanagan told him how to get to the Hanrahan lands. He had never been there before. On arrival at

the Hanrahan lands with each load, Mr Buckley said that he knew nothing about the movement of the stuff in each load beyond the

shed in the yard where he tipped it out. He would back his lorry into the yard. He was never in the quarry.

106. Mr Buckley said that he first became aware that there was a problem when Mr Flanagan contacted him and asked him what type

of waste they were transporting. Mr Buckley could not recall when that contact occurred. As a result, he rang Cormac Shields to

make that enquiry, to which Mr Shields responded, ‘Don’t ever ring this phone again.’ Mr Buckley rang Mr Shields back but he only

said, ‘What did I tell you?’, before ending that call. Mr Buckley says that he never spoke to Mr Shields again after that and that

Greyhound did not pay him for any of the work that he did for it ‘at the latter end.’

107. There had been some suggestion that the two loads of ‘compost’ the subject of the two Greyhound dockets appeared to have

been consigned on the 11/09/11. Mr Buckley stated that, in his view, the handwritten date on each of those dockets was ‘11/04/11’

and not ‘11/09/11’, although he was not the author of the handwritten entries on either docket.

108. Under cross-examination, Mr Buckley said that he always tipped each load of ‘compost’ in the farmyard. He opened the farmyard

gate and then reversed in. He never saw anyone there. He never saw any activity there.

109. Mr Buckley was asked about an affidavit that he swore on 15 October 2012 on behalf of the respondents in the s. 58

proceedings. The affidavit was never filed in those proceedings but it was discovered by the Hanrahans in the context of the present

action. Mr Buckley said that he had furnished it to the firm of solicitors then representing the Hanrahans at that firm’s request,

although he had not then met any of the Hanrahans. Counsel for Greyhound put it to Mr Buckley that, in that affidavit, he had

referred to requests from Mr Shields to transport loads from Greyhound Waste in Clondalkin to the Hanrahan lands in December 2010

and January 2011, rather than in March and April 2011. Mr Buckley said in reply that he can’t say when exactly he would have

transported the relevant loads, only that he did so.

110. Once again, I pause here in the narrative of the evidence. I do so to note that, in my judgment, the more telling detail in Mr

Buckley’s affidavit is the description he provides concerning his knowledge of the nature of the loads he was transporting. It is worth

quoting the relevant averments in full:

‘2. I say that I was an independent haulage contractor and operated from the above address for a number of years. In

the course of my business, I did work for Greyhound Waste. The procedure was that Cormac Shields would ring me when

the depot in Clondalkin was starting to get full and he would ask me to draw as many loads as possible from the depot in

Clondalkin.

3. In particular, I remember that in or about December 2010 and again in January 2011 I received requests from Cormac

Shiels (sic) of Greyhound Waste to collect waste from the depot in Clondalkin which waste I delivered to a farm yard near

Graigueadrisly, Rathdowney in the Count of Laois, which farm I now know is owned and or operated by one or other of the

above-named Respondents. The waste I collected was what Greyhound describe as “fines” which is screened household

domestic waste. I say that when I collected the waste I agreed a delivery rate with Cormac Shields and was paid by

cheque drawn on an account in the name of Greyhound Waste. I say that I continued to draw waste to that farm until

early February 2011.

4. I further say that when I was delivering waste to this farm I was also aware that another contractor who was also

employed by Greyhound Waste was also delivering waste to this farm at the same time.’ (emphasis added)

111. When the relevant averments were put to Mr Buckley, he simply contradicted them by stating that, while he accepted he did

draw ‘screened household domestic waste’ for Greyhound, he would only have brought ‘compost’ from Greyhound to the Hanrahan

lands. He said that he had an automatic tailgate on his lorry and that, when he arrived at the farmyard on the Hanrahan lands, he

would just tip the load without looking at it. However, he did then acknowledge that when he went to the Greyhound yard he would

look at what was being loaded and would know what it was.

112. At no stage in the course of the cross-examination of Mr Buckley was it suggested to him that he was either lying or wrong in

his assertion that he had collected several loads of material - whether described as ‘compost’ or ‘fines’ - from the Greyhound premises

at Crag Avenue in Clondalkin at the direction of Mr Cormac Shields of Greyhound for delivery to the Hanrahan lands.

(iv) Mr Patrick Horan

113. The fourth witness called by the Hanrahans was Patrick Horan. He gave evidence as follows.

114. He is a truck driver from Mountmellick, County Laois, with 20 to 25 years’ experience. In 2011, he was working for Mr Buckley. In

that capacity, he could recall doing deliveries from Greyhound Waste in Clondalkin to a yard on the Hanrahan lands. Mr Buckley, gave

him directions to the lands. On each occasion, when he got there he would reverse his truck into the yard and unload it. He operated

an automatic tailboard using a button on a console in the cab. He made such deliveries maybe eight or ten times. His truck had a load

capacity of maybe six or eight tonnes. He thought he was transporting mushroom compost or peat compost. It was certainly a

compost substsance.

115. Mr Buckley would ring Mr Horan, telling him where he needed to go to pick up a load, whether at the Greyhound premises or

elsewhere. When picking up a load at Greyhound, Mr Horan would drive up onto the weighbridge. His truck weighed about 11 or 11

and a half tonnes empty. He would then proceed further onto the site where black coloured peat or compost was loaded onto his

vehicle using a big loading shovel. He knew it was compost because that is what Mr Buckley had told him it was, and Mr Buckley had

told him to make sure he only drew compost from that plant. Mr Horan would remain in the vehicle, while it was loaded. Once that

was done, Mr Horan would drive back on to the weighbridge on the way out. With a typical load, his vehicle would probably weigh 19

and a half tonnes.

116. Mr Horan had some difficulty with reading and writing, so he would hand the weighbridge operator the docket book and the latter

would fill it out. The weighbridge operator would keep the top copy of the docket, a white one. All loads had to be signed for by

Greyhound.

117. According to Mr Horan, it might be nine or ten p.m. when he arrived at the Hanrahan lands with a load. Because he never

expected anyone to be there, he would get the man at the weighbridge in Greyhound to sign for the load when he was leaving that

premises. Mr Horan had no contact with a man named Cormac Shields in Greyhound. In the farmyard at the Hanrahan lands he never

saw another human being. While there might be as many as eight days between the loads he delivered, on each occasion that he

arrived at the farmyard with a load, there was no sign of the previous one. He never saw the quarry on the lands and did not know

that it was there. He simply unloaded the material on the ground in the farmyard and left it there. He could not say whether he had

delivered loads between 6 and 11 April 2011, only that, whenever he delivered loads, there was no one else present in the yard.

118. Under cross-examination, Mr Horan said that the last time he had seen the Buckley docket book before it was produced to him in

court would have been four or five years ago. Mr Buckley had contacted him about the case about a month or two months prior to his

appearance as a witness. He could recall driving one of the trucks, the registration of which appears on one of the dockets in the

docket book. The docket number was 212, the truck registration number was 06 TN 3821, the date of consignment was 27 March

2011, and the material in the load is described as ‘compost’, so he thought he had probably delivered that load to the Hanrahan lands

on that date. There was never anyone at the lands to sign for a load. If there had been, Mr Horan would have got that person to sign

a docket. Mr Horan confirmed that there was nothing on the docket, or any docket, to show that the load concerned had been

delivered to the Hanrahan lands.

119. Mr Horan knew Mr Flanagan only as another truck driver who he would occasionally meet on the road, ‘having coffee at a filling

station or whatever.’ He understood that Mr Flanagan was involved in reclamation and plant hire. He thought that Mr Flanagan might

have had a low-loader vehicle that would have been capable of transporting track machines. He was not aware until told during the

trial of the action that Mr Flanagan had also been involved in drawing loads from Greyhound to the Hanrahan lands. He had no direct

knowledge of Mr Flanagan’s involvement.

120. It was not suggested to Mr Horan in cross-examination that, in asserting that he delivered several loads of material from

Greyhound’s premises at Crag Avenue to the Hanrahan lands, he was either lying or mistaken.

(v) Mr Kevin Flanagan

121. The last witness called by the Hanrahans was Mr Kevin Flanagan. He gave evidence in the following terms.

122. Throughout his adult life, he worked as a truck driver. He had also been involved in plant hire for about 10 years. Those

businesses failed in the recession and he was forced to sell everything. He now fixes machines for a living.

123. Although he now lives in Mountmellick, he had known Mr Hanrahan Senior down through the years, because he used to live in

Rathdowney. He would have done land reclamation, the construction of tanks and yards, and other contract work for farmers. He was

familiar with the Hanrahan lands. He remembered the area of the old quarry or pit. In 2011, it hadn’t been used in years. It was a

relatively small area, dug out in some places and not in others.

124. Mr Flanagan had known Mr Buckley for years through his plant hire work.

125. Mr Flanagan says that he ‘would have had a conversation with Mr Hanrahan Senior about levelling up his quarry or pit.’ He told

Mr Hanrahan Senior that there would be compost available to fill up the hollows and holes there. According to Mr Flanagan, ‘that’s

how the process started’.

126. Mr Flanagan transported several loads from Greyhound to the site. He did so at the request of Mr Buckley. On each of these

occasions, he unloaded the material beside the shed in the farmyard. He never brought material across the field to the quarry. He was

not involved in whatever vehicle movements created the tracks between the farmyard and the quarry. He did not see those tracks at

the time.

127. Mr Flanagan said that he understood that he was drawing compost to fill in the land at the quarry, ‘to get it back to arable land.’

Mr Buckley told him that. Mr Buckley and himself would frequently do loads for one another.

128. He would pick up loads at the Greyhound premises in Clondalkin. His own work would bring him everywhere and anywhere around

the area. Mr Buckley would ring him occasionally, saying ‘if you are in the area, pick up a load in Clondalkin and bring it down to

Rathdowney.’ On arrival at the Clondalkin premises, he would weigh in his vehicle. He would stay in the cab while the vehicle was

loaded and then have a docket signed on the way out. The process would take minutes. There was no delay. It was in and out.

129. Mr Flanagan said that he would fill in what he was going to get, then what he got. When the docket was signed at the

weighbridge, he would tear out a white triplicate page and hand it in. When it came to the bit at the bottom of the docket, he got

that signed by Greyhound because he was working for Mr Buckley and the important thing for him was to prove to Mr Buckley that he

had picked up the load at Greyhound as requested. Mr Flanagan said that he had never seen the Buckley docket book prior to the

trial. He stated that his handwriting doesn’t appear anywhere in it.

130. Mr Flanagan never saw anyone at the Hanrahan lands. He was not there many times, although he cannot say how many trips he

made. It was a long time ago and he hadn’t kept any books from that period. Those trips would all have been in or around March and

April of 2011. At the end of that period, Mr Flanagan got a phone call from Mr Hanrahan Junior, who asked him, ‘What is going on?’ Mr

Hanrahan Junior told him that the stuff on the Hanrahan lands was not ‘what is should be.’ Mr Flanagan had not previously known Mr

Hanrahan Junior although he had dug out the foundations for Mr Hanrahan’s family home some years earlier.

131. According to Mr Flanagan, he and Mr Hanrahan Junior drove up to the Greyhound premises at Crag Avenue a short time

afterwards. Mr Hanrahan Junior blocked the weighbridge there by driving his vehicle up onto it. Eventually, Cormac Shields came out

to speak to them. Mr Flanagan had never met Mr Shields before. Mr Hanrahan Junior was irate and wanted answers but did not get

them. Mr Hanrahan Junior and Mr Flanagan wanted to come to some agreement with Mr Shields about the removal by Greyhound of

the material dumped on the Hanrahan lands. At some point in the conversation, Mr Shields gave Mr Flanagan his mobile phone number.

Mr Flanagan subsequently rang Mr Shields on that number several times ‘to see what we were going to do’.

132. Mr Flanagan said that he felt a bit responsible for bringing the waste to the Hanrahan lands although he did so on the basis that

it was supposed to be compost. Mr Flanagan felt he had put his own head on the chopping block. On that basis, he made inquiries of

various other parties to see if they could assist in removing the waste from the Hanrahan lands. He went to see a man in Waterford or

New Ross who did waste removal and got figures from him for the removal of the waste on the Hanrahan lands. He rang Mr Shields but

Mr Shields wouldn’t have any of it. Mr Shields wouldn’t help Mr Hanrahan Junior and Mr Flanagan at all.

133. Mr Flanagan stated that he has no records from that period. He probably would have binned them. If he was doing a load or job

for Mr Buckley, he would have been given a docket book like the one in court, which he would have returned to Mr Buckley

afterwards. For that reason, it was his belief that there must be at least one other docket book in which loads from Greyhound to the

Hanrahan lands were recorded. Once he returned Mr Buckley’s docket book, he would not see the docket in relation to the load

concerned again. He would prepare an invoice of his own that, as a sub-contractor, he would submit to Mr Buckley, as contractor.

The probability is that he would have sent Mr Buckley a single invoice with the eight loads approximately that he did for him set out

on it. He would have binned his own records long ago, as he never thought he might need them years later.

134. I pause here to note how strange that last portion of Mr Flanagan’s evidence is. According to his earlier evidence (and that of Mr

Hanrahan Junior), he knew that Mr Hanrahan Junior was in serious dispute with Greyhound from a date no later than their visit to the

Greyhound premises, which each of them describes as having occurred very shortly after the Council’s discovery of the illegal dump on

the Hanrahan lands on 6 April 2011. Yet Mr Flanagan was content to state on oath that he never thought that he might need his

records of the deliveries that he carried out from the Greyhound premises at Crag Avenue, Clondalkin, to the Hanrahan lands, with the

result that he was happy to bin those records shortly afterwards. Similarly, it is very difficult to see why Mr Flanagan could not have

put Mr Hanrahan Junior immediately and directly in contact with Mr Buckley, with a view to securing Mr Buckley’s evidence and

records of his dealings with Greyhound.

135. Mr Flanagan went on to state that he does not believe that he was paid by Mr Buckley for the relevant work.

136. Under cross-examination, Mr Flanagan acknowledged that he had spoken to Mr Hanrahan Senior at the outset of these events,

although he was not clear about whether he had approached Mr Hanrahan Senior or Mr Hanrahan Senior had approached him. In

either event, Mr Hanrahan Senior spoke to him about levelling the old quarry. Mr Flanagan told Mr Hanrahan Senior that there would

be compost available for that purpose. On that basis, he would have passed on Mr Hanrahan Senior’s number to Mr Buckley. However,

Mr Flanagan did not subsequently do any of the envisaged levelling work at the old quarry.

137. Further in cross-examination, Mr Flanagan said that he wasn’t aware that sand could still be drawn from the quarry; he did not

know why Mr Hanrahan Senior would want to fill in the old quarry with compost in those circumstances; he had not been told by Mr

Hanrahan Senior that the lands were leased to his son, Mr Hanrahan Junior; he had not been told by Mr Hanrahan Senior that he had

retired from farming; he was not aware of any arrangement between any of the Hanrahans and a man called ‘Mr O’Connor’ of ‘Acorn

Plant and Machinery Hire’ to permit the latter to draw sand from the old quarry; and he did not wish to comment on how unusual it

would be for Mr Hanrahan Senior to make an agreement with ‘Mr O’Connor’ permitting sand to be drawn from the quarry, on the one

hand, while at the same time making an agreement with Greyhound to provide compost to fill in the quarry, on the other.

138. Still further in cross-examination, Mr Flanagan acknowledged that Mr Hanrahan Junior would have known everything that he knew

about the apparent arrangements between Mr Hanrahan Senior and Greyhound from the time of their first discussions very shortly

after the discovery of the illegal dump on 6 April 2011. Mr Flanagan also acknowledged that he had made statements to the firm of

solicitors then representing Mr Hanrahan Senior, Mrs Hanrahan (and, perhaps also, Mr Hanrahan Junior) on 11 and 15 October 2013.

The Hanrahans have made discovery of those statements in these proceedings, although they have asserted privilege (presumably,

litigation privilege) against any inspection of them. Mr Flanagan conceded that he has never contacted the authorities concerning any

of these matters, nor has any authority contacted him.

139. After Mr Flanagan’s evidence, the Hanrahans rested their case.

Application to Dismiss

140. Counsel for Greyhound then applied for an order dismissing the proceedings. In accordance with the principles laid down by the

Supreme Court in O’Toole v Heavey [1993] 2 IR 544, I asked Counsel whether, in the event of the refusal of that application,

Greyhound intended to go into evidence. Counsel for Greyhound informed the Court that it did not.

141. Accordingly, the question for resolution is whether at this stage the plaintiffs have discharged the burden of proof they bear to

satisfy the court on the balance of probabilities that they are entitled to judgment; O’Donovan v Southern Health Board [2001] 3 IR

385, following O’Toole v Heavey [1993] 2 IR 544 at 567-7.

Findings of fact

i. did the Hanrahans authorise the dumping?

142. The first question of fact that must be resolved is whether the Hanrahans have established, on the balance of probabilities, that

neither of them, nor anyone on their behalf, authorised the dumping of the waste on their lands and that they were unaware of that

activity until notified of it by the Council.

143. The only evidence before the court on that question is the testimony of Mr Hanrahan Junior. I regret to say that I found Mr

Hanrahan Junior to be an entirely unreliable witness, whose testimony stretched credulity beyond breaking point on several issues.

144. In assessing the credibility of Mr Hanrahan Junior’s evidence, I start from the proposition that it is innately improbable that the

dumping on the Hanrahan lands of processed waste on the scale acknowledged here could have occurred over several weeks or, quite

possibly, months without the Hanrahans’ knowledge.

145. For all of the reasons that I have already flagged in summarising his evidence, I do not accept Mr Hanrahan Junior’s explanation

for his professed ignorance in that regard. Those reasons include the following. First, I do not accept Mr Hanrahan Junior’s

uncorroborated assertions that, at the material time, he had moved out of the family home due to a temporary estrangement from his

wife, which led to a permanent estrangement from his father, and that he was then living in Dublin and working extensively abroad,

being only coincidentally - though inexplicably - present on the home farm when an attempt was made to serve his parents with the

s. 58 proceedings there on 18 November 2011 and when he was personally served with those proceedings there four days later.

146. Second, I do not accept Mr Hanrahan Junior’s further assertion that both he and his father had been taken in by a mysterious

figure, ‘Mr O’Connor’, who has since completely vanished, nor do I accept the different and inconsistent version of events later

presented as part of the Hanrahans’ case through the evidence of Messrs Buckley, Horan and Flanagan.

147. Third, I do not accept the proposition that Mr Hanrahan Senior perjured himself in the s. 58 proceedings, a claim made for the

first time by Mr Hanrahan Junior only after his father’s death. And fourth, I view Mr Hanrahan Junior’s attempts to challenge key parts

of the Council’s evidence against him in the s. 58 proceedings now, in circumstances where he failed or neglected to challenge that

evidence then, as deeply damaging to his credibility.

148. It follows I am satisfied that, on the balance of probabilities, the Hanrahans did know of the large scale operation whereby

municipal waste weighing between 960 and 1,840 tonnes arrived in lorry load after lorry load at the farmyard on their lands and was

unloaded there, before being loaded onto a tractor and trailer (or some similar type of vehicle) and transported a further 400 metres

across their lands to the old quarry, where it was deposited using a track machine of some kind. And the ineluctable inference I draw

from that finding is that the Hanrahans authorised that activity in a manner and in circumstances that they remain unwilling to

disclose but which must have involved the receipt by one or more of them of some payment, benefit or privilege as consideration for

doing so.

ii. Is Greyhound the producer of the waste?

149. The direct evidence on this issue is that of Messrs Buckley, Flanagan and Horan. Each of those three witnesses testified that he

collected several loads of material from the Greyhound premises at Crag Avenue, Clondalkin, County Dublin and transported them in his

lorry to the farmyard on the Hanrahan lands at Graigueadrisly, depositing the material there. Mr Buckley gave evidence that these

collections and deliveries occurred at the direction of a Mr Cormac Shields of Greyhound. Mr Flanagan testified that a man

representing himself as Cormac Shields of Greyhound spoke with Mr Hanrahan Junior and himself at the Crag Avenue premises when

they visited it shortly after the Council discovered the illegal dump on the Hanrahan lands in April 2011. It was never suggested to

any of those witnesses that he was untruthful or mistaken in that evidence.

150. Mr Reilly, the consultant engineer instructed on behalf of the Hanrahans, identified the waste in the old quarry on the Hanrahan

lands – some 400 metres from the farmyard - as mixed municipal waste of the type referred to as ‘fines’ or ‘compost’, before

expressing the view that there are approximately nine waste plants in the country capable of converting household and light industrial

waste into that form, and that the Greyhound premises at Crag Avenue, Clondalkin, County Dublin is one of them; indeed, the one

nearest to the Hanrahan lands. While Mr Reilly accepted that he had no direct evidence of the operations at the Crag Avenue site,

neither his expertise nor his research on the point was directly challenged.

151. On behalf of Greyhound, it was put to each of those witnesses that the documentary evidence relied upon by the Hanrahans in

the form of the Buckley dockets was inconclusive in terms of what it purported to record and, further, inconsistent with their

evidence and with the established facts in certain material respects. The principal such inconsistency is that there are dockets

purporting to record the collection of loads from Greyhound on as many as seven occasions after the Council discovered the illegal

dump on the Hanrahan lands on 6 April 2011, despite the unchallenged evidence of the Council that no material change was noted on

the Hanrahan lands after that date. It was also put to each of those witnesses without demur that the relevant weighbridge

documentation discovered by Greyhound contains no entry equivalent to the contents of any of the Buckley dockets.

152. Counsel for the Hanrahans, citing McGrath, Evidence, 2nd edn (Dublin, 2014) at para 3-52, submits that ‘it is well established

that a court is entitled to draw an adverse inference from the failure of a party to call a witness who is available to give evidence in

relation to a fact in issue’; M’Queen v Great Western Railway (1875) LR 10 QB 569 at 574 and R. v IRC, ex p. TC Coombs & Co.

[1991] 2 AC 283 at 300, the latter cited with approval by this court in Crofter Properties Ltd v Genport Ltd [2002] 4 IR 73 at 85.

153. In Wisniewski v Central Manchester H.A. [1998] Lloyd’s Rep Med 223, the Court of Appeal of England and Wales summarised the

relevant principles in a manner subsequently endorsed by this court in both Fyffes plc v DCC plc [2009] 2 IR 417 at 508 and Nolan v

Carrick [2013] IEHC 523 at [44]. It did so in the following terms:

‘(1) In certain circumstances the court may be entitled to draw adverse inferences from the absence or silence of a

witness who might be expected to have material evidence to give on an issue in an action.

(2) If a court is willing to draw such inferences they may go to strengthen the evidence adduced on that issue by the

other party or weaken the evidence, if any, adduced by the party who might reasonably have been expected to call the

witness.

(3) There must, however, have been some evidence, however weak, adduced by the former on the matter in question

before the court is entitled to draw the desired inference: in other words, there must be a case to answer on that issue.

(4) If the reason for the witness’s absence or silence satisfies the court, then no such adverse inference may be drawn.

If, on the other hand, there is some credible explanation given, even if it is not wholly satisfactory, the potentially

detrimental effect of his/her absence or silence may be reduced or nullified.’

154. As the Supreme Court pointed out in Whelan v AIB [2014] IESC 3, if the foregoing principles are to be properly applied, both the

relevant witness (or witnesses) and the specific inference (or inferences) to be drawn from the absence of each such witness must

be clearly identified.

155. In this case, the Hanrahans have clearly identified Mr Cormac Shields as the relevant witness. The specific inference they ask

the court to draw from his absence as a witness at trial is that he directed the transportation of the waste at issue on behalf of

Greyhound from its plant at Crag Avenue, Clondalkin, County Dublin to the Hanrahan lands at Rathdowney, County Laois to dispose of,

or hold it, there in a manner likely to cause environmental pollution.

156. I am satisfied that the evidence adduced on the question, namely the relevant testimony of Mr Buckley, Mr Flanagan and Mr

Hanrahan Junior, is sufficient to give rise to a case to answer. I am further satisfied that Greyhound has not proffered any explanation

or reason for Mr Shields’ absence or silence, whether satisfactory or not. In the circumstances, I conclude that it is appropriate to

draw the inference contended for.

157. At the end of the trial, Greyhound submitted that no evidence had been given that the waste delivered to the farmyard was the

waste subsequently discovered in the old quarry. Presumably, the court is being invited to conclude that an essential link in the chain

of evidence is therefore missing. I cannot accept that submission. The Council’s uncontroverted evidence of rutted, waste-pitted

tracks leading from the farmyard to the old quarry across a litter strewn field, provides a more than ample foundation for the

conclusion, on the balance of probabilities, that the waste delivered to the farmyard and the waste later found in the old quarry are

one and the same.

158. The penultimate observation I wish to make before setting out my conclusion on this issue is the following one. This case

presents a particular kind of controversy in civil litigation broadly analogous to the situation in criminal litigation where a ‘cut-throat

defence’ is mounted. Thus, the court has been presented with the evidence of various witnesses, the lawfulness or propriety of

whose conduct is in question, vigorously pointing the finger of blame in the direction of other persons while steadfastly insisting on

the innocent nature of their own involvement, or their lack of any involvement, in the relevant events. Confronted with such defences

in criminal cases, judges and jurors alike often tend to reject those parts of a witness’s testimony that are self-exculpatory, while

accepting the credibility of other parts of the same testimony that are inculpatory of others. I find myself in that position concerning

the evidence of several of the witnesses of fact in this case.

159. Hence, it may be just as well for Messrs Buckley, Flanagan and Horan that I am not required to express any view on the

assertion of each as an experienced haulier that he genuinely believed that he was collecting loads of non-waste ‘compost’ from a

waste management facility and delivering them to the Hanrahan lands to be properly deployed for land reclamation purposes, rather

than dumped as waste in an unlicensed landfill, simply because in each case someone else had told him so. I have already expressed

my view on the evidence of Mr Hanrahan Junior concerning his professed ignorance of the resulting large-scale waste disposal activity

on the Hanrahan farmlands. Much of the thrust of Greyhound’s defence of the action involved exposing the innate implausibility of

those claims, presumably on the basis that, if those aspects of the relevant witnesses’ testimony were rejected as unworthy of

credit, so too would be their direct evidence identifying Greyhound as the producer and consignor of the waste. As I hope I have

explained, it seems to me that such an undifferentiated approach to the evidence, while no doubt often appropriate, is not the

correct one in every case. It certainly does not accord with my assessment of the evidence in this case.

160. Finally, I should make it clear that I do not attach very much weight or significance either way to the documentary evidence

presented. The Buckley dockets, if genuine, represent the rough and ready record of a trade that does not exclude the unlettered.

The authors of the various entries on the different dockets remain unidentified. To the extent that the purported delivery dates on

certain of those dockets put them in conflict with the Council’s evidence concerning the date after which no further loads arrived at

the Hanrahan lands, I do not think that is sufficient to undermine the testimony of each of the relevant witnesses that, while he

cannot vouch for the accuracy of the dates in the docket book, he did collect several loads of what was plainly waste from the

Greyhound premises at Crag Avenue in Clondalkin and did deliver them to the farmyard on the Hanrahan lands. Similarly, I do not think

that the absence of any weighbridge documents among Greyhound’s records corresponding to any of the loads recorded in the

Buckley dockets counts for very much. The disposal of waste in a manner that causes, or is likely to cause, environmental pollution is

unlawful. It would be quite astonishing if any entity engaged in that activity kept any records, much less meticulous ones, concerning

it.

161. For the reasons I have given, I conclude that Greyhound was the waste producer, as that term is defined under the 1996 Act, of

the waste that was illegally dumped in the old quarry on the Hanrahan lands.

The private law claims

162. Against the background of the facts as I have found them to be, I must now consider the Hanrahans’ private law claims against

Greyhound of trespass, negligence and breach of duty (including breach of statutory duty), and nuisance.

163. I have found that the Hanrahans did know of the large-scale disposal and holding of waste at the old quarry on their lands in a

manner causing, or likely to cause, environmental pollution, and that they must have authorised that activity in exchange for some

payment, benefit or privilege.

164. Accordingly, a fundamental question arises concerning whether the Hanrahans are debarred by their own wrongful conduct from

obtaining any of the private law reliefs that they seek.

165. The venerable common law doctrine of ex turpi causa non oritur actio - loosely translated as ‘from a dishonourable cause an

action does not arise’ - is relevant here. The scope of the doctrine in Irish law is very thoroughly discussed under the heading

‘Illegality’ in the chapter on ‘Defences’ in McMahon and Binchy, Law of Torts, 4th edn, (Dublin, 2013) at paras. 20.108 to 20.125.

166. The leading decision in the area is that of this court in Anderson v Cooke [2005] 2 IR 607. In addressing the defence (at 613),

Finnegan P first pointed to the limitation contained in s. 57(1) of the Civil Liability Act 1961, whereby ‘[i]t shall not be a defence in an

action of tort merely to show that the plaintiff is in breach of the civil law’, before observing that the effect of that provision is to

modify but not abolish the defence. In their work, already cited, McMahon and Binchy comment (at para. 20.119) that the

achievement of the section as a qualification upon the defence is a barely measurable one ‘since no court in any common-law

jurisdiction has ever maintained the draconian policy of dismissing a claim automatically on proof of some illegality on the plaintiff’s

part.’ The real question is in what circumstances is wrongful conduct or a breach of the civil law sufficient to trigger the defence?

167. Finnegan P went on to note that, in O’Connor v McDonnell (Unreported, High Court, 30th June, 1970), Murnaghan J cited with

approval the following statement of the law by Lord Mansfield in Holman v Johnson (1775) 1 Cowp. 341:

‘No court will lend its aid to a man who founds his cause of action upon an immoral or an illegal act if from the plaintiff’s

own stating or otherwise the cause of action appears to arise ex turpi causa or the transgression of a positive law of the

country then the court says he has no right to be assisted. It is upon that ground that the court goes: not for the sake

of the defendant.’

168. Having surveyed the leading cases across the common-law world on the contemporary parameters of the defence, and having

commented that the maxim is more likely to have application in circumstances of joint illegal activity, Finnegan P concluded that the

maxim is based on public policy and that it is therefore necessary: first, to examine the policy of the statute or common law under

which the relevant party’s illegal conduct arises; and then, to determine if a duty of care (or, presumably, some other basis of

tortious liability) exists in that context.

169. What is the public policy underpinning the Waste Management Act 1996? At the risk of being trite, the long title of the Act

confirms that its purposes include; ‘to make provision in relation to the prevention, management and control of waste’; and ‘to give

effect to provisions of certain acts adopted by institutions of the European Communities in respect of those matters.’

170. As Professor Scannell points out in her work Environmental and Land Use Law, (Dublin, 2006) at para 8-20 and para 8-223, the

1996 Act was enacted to reform and codify existing legislation on waste management; to implement various European Directives and

one Regulation on waste; and to provide the framework for further subordinate legislation on waste management. One of the most

important Directives implemented was Directive 75/442/EEC amended by 91/156/EEC on waste (‘the Waste Management Directive’ or

‘WFD’). Article 4 of the WFD requires Member States to take the necessary measures to ensure that waste is disposed of without

harming human health and the environment and without using methods that could harm the environment and, in particular:

(a) without risk to water, air, soil, plants and animals;

(b) without causing a nuisance through noise and odours; and

(c) without adversely affecting the countryside or places of special interest.

171. In my judgment it would be entirely contrary to the policy of the 1996 Act to permit any person who has willingly engaged in

holding waste in a manner causing, or likely to cause, environmental pollution to escape his share of responsibility for the discovery of

that unlawful conduct by asserting that the willing disposer and co-holder of that waste owes a duty of care (or bears some other

form of tortious liability) to protect or insulate him from the public law consequences of their joint enterprise.

172. To adapt the example given by Lord Reid in National Coal Board v England [1954] AC 403 at 409, this is not so much the

equivalent of a case where a burglar who sues another for negligence in his use of explosives to crack a safe is destined to lose, as it

is the equivalent of a case where a burglar who sues another for failing to protect him from liability to make restitution is more certain

still to fail in his action.

173. For these reasons, I conclude that the defence of ex turpi causa is made out. Accordingly, the Hanrahans private law claims

against Greyhound cannot be permitted to proceed, not for the sake of Greyhound but to enforce the principle that a grave and

proximate transgression of the law of the State prevents the assertion of a private law right in connection with it.

The public law claims

174. In addition to their various private law claims in tort, the Hanrahans seek a declaration that Greyhound dumped waste on the

Hanrahan lands in contravention of the provisions of the 1996 Act, and an Order against Greyhound pursuant to s. 57 of that Act.

175. Yet s. 57(2) of the 1996 Act provides:

‘An application for an order under this section shall be by motion….’

176. It is thus clear that, in seeking an order under s. 57 of the 1996 Act in plenary proceedings commenced by way of plenary

summons, rather than in summary proceedings commenced by way of originating notice of motion, the Hanrahans are in breach of the

requirements of that Act.

177. Can the Hanrahans’ position in that regard be ameliorated by the application of any rule of court or the exercise of some

discretion vested in the court? In John Ronan & Sons v Clean Build Limited (In liquidation) & Ors [2011] IEHC 350, Clarke J was

confronted with what was, in many ways, the obverse of the situation here. There, proceedings under ss. 57 and 58 of the 1996 Act

had been brought in a summary manner by originating notice of motion as the Act requires. Having noted that in many cases that is

the appropriate procedure to follow, Clarke J pointed out that there are some cases where the summary nature of the process gets in

the way of an effective hearing and that the case before him was one such, in that a more effective process would have been a full

plenary hearing with the advantage of the procedures adopted in the commercial court, because of the complexities of the evidence

adduced and the liability issues arising.

178. Clarke J observed that there are cases in which a more efficient process than the one under the 1996 Act could have been

devised if the court were given a discretion to convert the proceedings into plenary proceedings, which would allow all necessary

parties to be joined in a single action, and would allow witness statements which focus on the issues that require to be decided at

trial to be filed, thus removing any earlier affidavit evidence, which is no longer relevant, from the picture. However, Clarke J. went on

to point out that the current state of procedural law does not permit such a measure.

179. In this case, the Hanrahans have arrogated to themselves the right to commence proceedings under the 1996 Act in a manner

that the Act itself does not allow. The result has been, at best, the creation of some procedural confusion and, at worst, an abuse of

process. The subject matter of these proceedings – the illegal dumping of the waste at issue on the Hanrahan lands - has already

been the subject of s. 58 proceedings, properly brought in accordance with the requirements of the Act. The plaintiffs in these

proceedings (the Hanrahans) were two of the three respondents in those proceedings, and yet they did not then seek to ventilate

the claims they make against Greyhound now.

180. In the circumstances, even if the public law aspect of the Hanrahans’ claim had been brought in the manner the 1996 Act

requires, and even if the Court had the discretion thereafter to convert the action into plenary proceedings (which it does not), in my

view this would still be a case in which such an application should be refused because it is one in which, in the words of Clarke J, ‘the

existing summary process is best suited to achieving a speedy and efficient result.’

181. The Hanrahans’ attempt to circumvent (or ignore) the procedural requirements of the 1996 Act, by launching separate plenary

proceedings invoking the provisions of that Act after the conclusion of the s. 58 proceedings in which they have already been

involved, also runs counter to the requirements of the rule in Henderson v Henderson (1843) 3 Hare 100, 67 ER 313, as elucidated

and applied by the Supreme Court in A.A. v. Medical Council [2003] 4 IR 302, whereby parties to litigation are required to bring

forward their whole case and will not be permitted to open the same subject of litigation afterwards merely because they have - from

negligence, inadvertence or even accident - omitted part of their case.

182. The John Ronan & Sons case, already cited, illustrates what seems to me to be the correct approach to litigation under s. 57 or

s. 58 of the 1996 Act, where a respondent alleges that another party bears responsibility for the holding, recovery or disposal of

waste causing environmental pollution. The respondents concerned should bring summary proceedings within the framework of the

1996 Act promptly against that party and, once that has been done, whatever order is appropriate can then be made consolidating,

joining or linking the two sets of proceedings.

183. Alternatively, it is at least possible that, had the Hanrahans instead brought the information and evidence upon which they now

seek to rely to the attention of the Council promptly in 2011, the Council’s s. 58 proceedings might well have included Greyhound as a

respondent. For the reasons already given, I am not persuaded by the Hanrahans’ assertions that they were prevented from adopting

that course either by the necessity to gather evidence against Greyhound over a longer time frame or by the asserted failures of their

solicitors or of the Council to act on the information that Mr Hanrahan Junior alleges he provided to them at the time.

184. Having failed to adopt either course, it is not now open to the Hanrahans to bring a separate plenary action after the conclusion

of the Council’s s. 58 proceedings, seeking their own reliefs under the 1996 Act against Greyhound in respect of the same events.

185. The problem in this case goes further than the obvious mischief that that rule in Henderson v Henderson is intended to address

i.e. the bringing of a multiplicity of actions where a single set of proceedings should do. There is a further, more insidious, mischief

here.

186. In the s. 58 proceedings, the Council adduced evidence of the statements after caution of Mr Hanrahan Junior. The respondents

to those proceedings (Mr and Mrs Hanrahan, and Mr Hanrahan Junior) were fully entitled to contest that aspect of the evidence

against them but did not do so. After hearing all the evidence, Hedigan J made an order pursuant to s. 58 of the 1996 Act against

each of the respondents. That Order includes the recital that each of the three Hanrahans is a ‘waste holder’, within the meaning of

that term under the 1996 Act. While the respondents lodged a notice of appeal against that order, they later withdrew it.

Accordingly, that issue has been finally determined against the Hanrahans by a court of competent jurisdiction.

187. The Hanrahans have brought the present action against Greyhound only. They have not made the Council a party to it. Yet, in

his evidence to the court in these proceedings, Mr Hanrahan Junior now denies on oath that he made cautioned statements in the

terms attributed to him by certain authorised officers of the Council. The Hanrahans now submit that, while the affidavits in the s. 58

proceedings constitute evidence in these proceedings by agreement between the parties, only limited weight can be given to any

averments they contain that Mr Hanrahan Junior has purported to contradict in his viva voce evidence at trial.

188. The Hanrahans contend, in effect, that it was incumbent on Greyhound to have the Council’s chief deponent in the s. 58

proceedings available to give evidence at the trial of this action to provide for the contingency that the Hanrahans, having failed to

challenge that evidence in those proceedings, might purport to do so now. The Hanrahans submit that, as the person concerned was

not called as a witness by Greyhound, her affidavit evidence in the s. 58 proceedings should be treated in these proceedings as

equivalent to the evidence in chief of a witness who has died prior to cross-examination. Accordingly, relying on the analysis of the

position where a witness is unavailable for cross-examination due to death or illness set out in McGrath, Evidence, 2nd edn. (Dublin,

2014) at para. 3-145, and the authorities cited there, the Hanrahans say that the conflicting evidence of the deponent concerned

may be considered by the court but should be given little weight.

189. To accept that submission in the circumstances I have just described would be to permit the Hanrahans to launch a collateral

attack upon the decision and order of Hedigan J. in the s. 58 proceedings. It would be an abuse of the process of the court to permit

the Hanrahans to raise or relitigate the issue of their status as waste holders or the findings of fact that led the court to that

conclusion; Breathnach v Ireland (No. 2) [1993] 2 IR 448, applying Kelly v Ireland [1986] ILRM 318, following Hunter v Chief Constable

of West Midlands [1982] A.C. 529. It is important to note that this is not a case of fresh evidence about the Hanrahans’ status as

waste holders under the 1996 Act, which, if it were otherwise, might bring the present claim within a potential exception to the public

policy rule against collateral attacks on earlier decisions.

190. Applying the principles that I have just described to the circumstances of the present case, I conclude as follows. First, the

Hanrahans are not entitled to seek any relief under the 1996 Act in these proceedings. Second, the Hanrahans cannot use these

proceedings as the occasion for mounting a collateral attack upon the earlier unchallenged decision of this court that the Hanrahans

are each waste holders of the waste at issue.

191. It is thus unnecessary to consider the argument advanced by Greyhound that, even if the court is satisfied on the evidence

presented that Greyhound was the source of the waste found on the Hanrahan lands on 6 April 2011 (and it is), that would not bring

Greyhound’s conduct within the terms of s. 57 of the 1996 Act, because that section only captures ‘holding, recovering or disposing’

of waste at any time from the commencement of the proceedings to the date of hearing, being in this case the holding, recovering or

disposing of waste between 20 September 2013 and 8 December 2015. Greyhound’s argument appears to be that, even if it were

found to have disposed of the waste concerned, it would have to have done so on or before 6 April 2011 and, thus, cannot on any

view be considered to have been ‘holding, recovering or disposing of’ the waste at the time when these proceedings were instituted

on 20 September 2013 or at any time since then.

192. While what follows is necessarily obiter, it seems to me that the submission concerned is misconceived. It is based on the

following dicta in the judgment of Clarke J in Cork County Council v O’Regan [2009] 3 IR 39 (at 46):

‘I am of the clear view that, in order to establish the conditions necessary for the making of an order under s. 57, it is

necessary for an applicant to establish that those conditions were present at any time from the commencement of the

proceedings to the date of hearing.’

193. In relying on that passage as authority for the proposition that any ‘holding, recovering or disposing of’ waste prior to the

commencement of proceedings cannot fall within the scope of s. 57, Greyhound makes an incorrect assumption; namely that, even if

it had produced the relevant waste and disposed of it on the Hanrahan lands prior to 6 April 2011, it could not be the holder of the

said waste after that date.

194. That assumption is incorrect for the following reason. Clarke J delivered judgment in O’Regan on 17 June 2005. In the subsequent

case of John Ronan & Sons Ltd, already cited, the same judge pointed out that the definition of ‘holder’ under s. 5 of the 1996 Act

was amended by Article 19 of the Waste Management (Registration of Brokers and Dealers) Regulations 2008, so that, with effect

from 1 July 2008, ‘waste holder’ means ‘the waste producer or the person who is in possession of the waste.’ Section 5 of the 1996

defines ‘waste producer’ as ‘anyone – (a) whose activities produce waste (in this Act referred to as the ‘original waste producer’), or

(b) who carries out pre-processing, mixing or other operations resulting in a change in the nature or composition of such waste.’

195. It follows that, as the producer of the waste later dumped on the Hanrahan lands, Greyhound was a holder of that waste at all

material times up to and including 6 April 2011 and remains a holder of it today, whether it is in physical possession of the waste or

not.

Conclusion

196. Considering certain of the findings of fact in this judgment, it may be that some further action remains possible in accordance

with the procedures stipulated under the 1996 Act. While it is not a matter for this court, it may be that, if the Hanrahans are now

prepared to offer the Council the evidence and co-operation they have so far withheld from it, the Council may be able to assist or,

indeed, to act in that regard.

197. Nonetheless, for the reasons I have given, I am satisfied that the plaintiffs have failed to discharge the burden of proof they

bear to satisfy the court on the balance of probabilities that they are entitled to judgment in respect of any of the reliefs that they

seek in the present action. I will therefore order that the proceedings be dismissed.