Two residents of Rossport, Co Mayo, who have brought legal counterclaims against Shell E&P Ireland and the State over the Corrib gas pipeline, have asked the High Court to order that a document belonging to Shell's lawyers can be used in the residents' action against the company.
The residents claim the document, which was included by lawyers for Shell in their court documents by mistake, shows inconsistencies between what Shell E&P Ireland was saying publicly in court and privately to its lawyers. They also claim it is relevant to the matter of damages and the good faith of the company.
The impression was given by Shell to the High Court last year that the company had all the necessary consents and approvals for the pipeline works, but the document in question showed the company was aware there were still outstanding issues to be resolved, argued Mark Dunne, for Brendan James Philbin and Breege McGarry. His side argued there was no valid consent or, alternatively, there was a phased and conditional consent.
Shell denies the claims and contends the document, dated June 10th, 2005, and referred to as a solicitor's "attendance docket", is legally privileged and therefore cannot be used in the proceedings between Shell and the Rossport residents.
The document recorded a consultation between Shell and its lawyers and no solicitor could have thought it was not a privileged document, said Declan McGrath, for Shell.
Mr Justice Thomas Smyth yesterday began hearing the residents' application for an order allowing them to use the document in legal proceedings.
Mr Dunne argued that most of the content of the document was published in an article in The Irish Times on July 5th, 2005.
Mr Dunne said his clients' counterclaim alleged Shell was guilty of abusing the court process to bring residents "to heel". The company had also created a sense of urgency when seeking injunctions against the residents when that urgency was not there, he said.
The attendance docket was attached to an exhibit presented to the court during injunction proceedings.
Mr McGrath, for Shell, argued the document was mistakenly included in documents presented to the court. He argued there was no delay by Shell in asserting privilege over the document and that his client could and should still be protected from the use of a privileged document.
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