Wicklow County Council (plaintiff) v John O'Reilly, Brownfield Restoration Ireland Limited, Raymond Stoakes, Ann Stoakes, Swalcliffe Limited trading as Dublin Waste, Louis Moriarty, Eileen Moriarty, Dean Waste Company Limited, William John Campbell, Anthony Dean, Una Dean, Samuel Steers (defendants)
Practice and procedure - Application to stay proceedings - One defendant subject to criminal charges arising out of same set of circumstances as that giving rise to civil proceedings - Whether defendants entitled to a stay on the civil proceedings pending the completion of criminal proceedings - Whether requirement to file replying affidavit in civil proceedings could amount to breach of right to silence in corresponding criminal proceedings - Effect of publicity on criminal trial - Waste Management Act 1996, s. 58 - Protection of the Environment Act 2003, s. 49
The High Court (Mr Justice Clarke); judgment delivered on September 8th 2006
The Waste Management Acts 1996 to 2003 create both criminal offences as well as providing for civil remedies. An application for civil orders is independent of a criminal prosecution. The onus rests upon the party seeking a stay of the civil proceedings to establish the grounds to enable the court to do so. The court must give due recognition to the importance of allowing the plaintiff to achieve a timely resolution of those proceedings. The court must balance, as against that, the extent to which there may be a real risk that prejudice might be caused to the criminal proceedings.
The High Court so held in refusing the stay sought.
James Connolly SC and Damien Keaney BL for the plaintiff; Shane Murphy SC and Declan McGrath BL for the eighth, tenth and eleventh named defendants
Mr Justice Clarke commenced his judgment by outlining the nature of the case. In the proceedings the plaintiff sought orders under s.58 of the 1996 Act (as amended) against all of the defendants arising from an allegation that the defendants were involved in unlawful actions in relation to the deposition of waste on lands at Whitestown, Co Wicklow. In the instant application the eighth named defendant and the tenth and eleventh named defendants sought to stay the proceedings as against them, pending the completion of criminal proceedings. Mr Justice Clarke stated that the tenth and eleventh defendants were, it appeared, at all material times, directors of Dean Waste. The claim against the directors was on the basis of a contention that they, as such directors, had a "fallback" liability on the basis of the "polluter pays" principle. The tenth named defendant was the subject of criminal charges under the Acts arising out of the same set of circumstances that gave rise to the instant proceedings. In those circumstances it was contended that it was inappropriate for the instant proceedings to be heard, or indeed to progress further, until such time as the criminal process was completed.
In that context, Mr Justice Clarke found it necessary to refer, firstly, to that criminal process. Criminal proceedings on indictment, entitled "the people at the suit of the Director of Public Prosecutions v Anthony Dean, Lawrence Creighton, Pat Fitzharris and John O'Reilly", had been commenced and were currently pending in the Dublin Circuit Criminal Court. Those criminal proceedings, insofar as they related to the tenth defendant were stayed by order of the High Court pending the hearing of a judicial review application. So far as the tenth defendant was concerned the indictment alleged two counts namely that a) he did dispose of waste on a particular date or dates, in a manner that was likely to cause environmental pollution contrary to s.32 of the 1996 Act and that b) he disposed of waste without having been so authorised by waste licence issued under part V of the 1996 Act.
In the substantive proceedings, the plaintiff sought orders pursuant to s.58(1)(a) of the Acts against all the defendants. Section 58 enables the court to make an order requiring the person to discontinue that unlawful activity and to mitigate or remedy any effects of same. Mr Justice Clarke stated that it was therefore clear that there was significant overlap between the circumstances giving rise to the alleged criminal conduct on the part of the tenth defendant and the circumstances giving rise to the contention by the plaintiff that all of the defendants were liable to the restraining and remedial orders specified in s.58. It was in that context that the defendants sought to have the proceedings stayed pending the resolution of the criminal process.
Mr Justice Clarke stated that the purpose of the Acts, which were enacted to give effect to a number of EU instruments, is the protection of the environment and human health, and the achievement of a high level of protection - that environmental damage should as a priority be rectified at source, and that the polluter should pay. Mr Justice Clarke stated that it was clear that the Acts create both criminal offences as well as civil remedies. It was also clear from s.58(6) that an application for civil orders is independent of a criminal prosecution for the activities which are claimed to give rise to the liability under s.58. In addition to entitling the court to restrain unlawful activity and remedy damage already caused, the Oireachtas also determined that there may be appropriate cases where, in addition to the civil remedies, it may be necessary to expose those who act in breach of the criminal provisions of the legislation to substantial penalties in addition to remedy the wrong already carried out. It was clear, therefore, that the Acts are the means used by Ireland to comply with the European Waste Directive. The importance of complying with those obligations must be taken into account in assessing the manner in which the court must approach the difficult questions which may arise in the circumstances where both civil and criminal proceedings are commenced arising out of the same "activities".
Mr Justice Clarke said that the instant proceedings had reached a stage where the plaintiff had placed before the court substantial evidence in favour of its contention that each of the defendants was guilty of a breach of the Acts. It was also clear that the case against each of the defendants was not necessarily the same. In the particular circumstances, it was possible that the case against the Dean Waste defendants in the proceedings may relate to some only of the lands the subject of the proceedings as a whole and to a portion of the total time scale during which waste may be found to have been deposited. Dean Waste argued that there was nothing to prevent those aspects of these proceedings which did not involve the Dean Waste defendants from proceeding even if the stay sought in the application was granted. However, Mr Justice Clarke stated that he did not believe that that was necessarily the case. It was, in his view, by no means clear on the evidence at that stage that the breaches alleged against the Dean Waste defendants, which would, if established, require remediation by those defendants, were necessarily discreet from the breaches alleged against the other defendants so as to enable the case as against those defendants to run to a conclusion without also considering the position of the Dean Waste defendants. There was a significant risk that the court would be unable to make final orders in respect of the remediation of the site without having reached conclusions in relation to each of the defendants.
Mr Justice Clarke turned then to the jurisprudence in respect of the interaction of criminal and civil proceedings arising out of the same circumstances. In Dillon v. Dunnes Stores [ 1966]I.R. 397 the Supreme Court refused to stay civil proceedings for false imprisonment in circumstances where the plaintiff was also facing a criminal charge of larceny of the defendant's property arising out of the same incident. Mr Justice Clarke considered Jefferson Limited v Bhetcha [ 1979]2 All ER 118 wherein Megaw L.J. outlined the principles to be applied on such an application. It was held, inter alia, that "the protection which is at present given to one facing a criminal charge [ the right to silence] does not extend to give the defendant as a matter of right the same protection in contemporaneous civil proceedings." Mr Justice Clarke stated that an important factor to be taken into account is the extent to which there may be a real danger of causing an injustice in the criminal proceedings. He further stated that a similar approach was taken in C.G. v Appeal Commissioners [ 2005]2 IR 472, in which Finlay Geoghegan J. accepted that there was no absolute obligation to adjourn the civil proceedings and indicated that each application must be determined on its own facts.
Mr Justice Clarke stated that it appeared, therefore, that there is no hard and fast rule as to how contemporaneous civil and criminal proceedings arising out of the same matter should be progressed. It is clear that the onus rests upon the party seeking a stay of civil proceedings to establish the grounds necessary to enable the court to do so. In coming to any such assessment the court must, on the one hand, give due recognition to the importance of allowing the plaintiff in the civil proceedings to achieve a timely resolutions of those proceedings and obtain the benefit of any orders which might be appropriate. On the other hand the court has to balance, as against that, the extent to which there may be a real risk that prejudice might be caused to the criminal proceedings.
Mr Justice Clarke was satisfied that in giving consideration to the latter matter the court must attempt to analyse the likelihood of there being any such prejudice and have regard to the extent to which it may be possible by measures to be adopted in the criminal process to minimise or ameliorate any such prejudice as might arise. Mr Justice Clarke was satisfied that a high weight needs to be attached to the importance of allowing a plaintiff charged with the enforcement of a civil regime for remedying environmental pollution to be able to obtain, in a timely fashion, whatever orders might be justified on the facts of an individual case. What needed to be weighed against those considerations were the contentions on the part of Dean Waste defendants as to the prejudice which might arise in respect of the criminal proceedings in the event that the civil proceedings are allowed to progress.
Mr Justice Clarke turned next to the alleged prejudice. Firstly, it was suggested that the conduct of the civil proceedings would necessarily amount to a denial of Mr Dean's right to silence. Secondly, it was suggested that there was a risk that the publicity which would be likely to result from the conduct of the civil proceedings would have the potential to prejudice a fair trial. Mr. Justice Clarke referred to In Re National Irish Bank [ 1993]3 IR 145 in which it was noted that the right to silence was not absolute but might, in certain circumstances, have to give way to the exigencies of the common good provided that the means used to curtail the right of silence were proportionate to the public object to be achieved. Mr Justice Clarke stated that there could be no doubt that there was potential for the Dean Waste defendants being placed at a disadvantage in the civil proceedings if they did not go into evidence.
However, Mr Justice Clarke stated, that disadvantage might be said to be less onerous than the obligation placed upon those required to answer the questions the inspectors in National Irish Bank who were faced with a criminal penalty should they refuse. Mr Justice Clarke was satisfied therefore that the purposes behind the conferring of a statutory jurisdiction on local authorities to seek the forms of enforcement orders allowed by s.58 of the Act, are an important part of the enforcement of environmental protection and thus have a significant weight in the public interest under the Constitution. In all those circumstances the limited form of interference with the right to silence by indirect means which applies in circumstances where a party may, as a matter of practice, though not as a matter of legal obligation, be required to file an affidavit in defence to an application for an order under s.58 amounts, in general terms, to a proportionate interference with the right to silence for securing the objectives of the Act, even where a criminal prosecution is in being.
Mr Justice Clarke was not satisfied that any potential interference with the right to silence in a case such as this that would arise by virtue of requiring the defendant to put in a replying affidavit while criminal proceedings were pending would justify staying the civil proceedings. However, Mr Justice Clarke did not rule out the possibility that at a subsequent stage in the proceedings it might be necessary to revisit the question in the light of more precise issues of disclosure (e.g. discovery or oral evidence) that might arise at that stage. Mr Justice Clarke stated that in so requiring, any effect on the right to silence would be limited and that the balance of justice did not favour staying the proceedings so as to remove a current obligation from Dean Waste defendants to file such an affidavit if they wished to contest the facts. Mr Justice Clarke was satisfied that it was not possible, at this stage, to form the view that any possible prejudice by reason of adverse publicity would be sufficient to warrant a stay of the proceedings.
Mr Justice Clarke therefore did not grant the stay sought.
Solicitors: Law Agent, Wicklow County Council (for the plaintiff); A & L Goodbody (Dublin) (for the eighth, tenth and eleventh defendants)
Kieran O'Callaghan, barrister