Frank Szabo (a minor) suing through his mother and next friend Doris Szabo, Eilish Walsh (a minor) suing through her mother and next friend Geraldine Walsh, Siobhan Walsh (a minor) suing through her mother and next friend Geraldine Walsh, Andrea Gordon (a minor) suing through her mother and next friend Triona Gordon, and Ailish Gordon (a minor) suing through her mother and next friend Triona Gordon (plaintiffs) v Esat Digiphone Limited, Ireland, the Attorney General, the Minister for Public Enterprise and Employment, the Minister for Health and the Minister for the Environment (defendants).

Practice and Procedure - Quia timet injunction sought at interlocutory stage - Whether plaintiffs had established that an injury would ensue to them between interlocutory hearing and trial of action.

The High Court (before Mr Justice Geoghegan); judgement delivered 6 February 1998.

A plaintiff must prove a substantial risk of danger before a court will grant a quia timet injunction.

Mr Justice Geoghegan, in the High Court, so held in refusing an interlocutory injunction which would have restrained the defendants from developing a proposed cellular mobile and personal communications base station in Co Sligo.

Frank Clarke SC and Fergal Kavanagh BL for the plaintiffs; Rory Brady SC and Eamon Galligan BL for the first defendant; James Connolly SC and Eanna Molloy BL for the second to fifth defendants. Mr Justice Geoghegan said that the plaintiffs were children who attended a school which was within 60 yards of the site of the proposed base. The plaintiffs claimed that expert scientific evidence established that as a matter of probability the operation of such a station would involve the emission of pulsed radio frequency radiation which would be dangerous to their health. The plaintiffs sought a number of permanent injunctions to stop the intended development and operations and were now seeking, by way of motion on notice, interlocutory injunctions of the same kind.

Mr Justice Geoghegan said that it would be at least 18 months before the case would be heard and that he would have to be satisfied in all the circumstances that it was just and reasonable to grant an interlocutory injunction against the first defendant in light of the repercussive effects that such an order might have in connection with the development of its business in Ireland. However, Mr Justice Geoghegan considered that the application of the Campus Oil criteria to the present case was inappropriate, in that there was something distasteful about balancing the convenience of the first defendant against the alleged dangers to the life and health of the plaintiffs.

Turning to the expert evidence adduced by the parties, Mr Justice Geoghegan said that in the application for the interlocutory injunction, the issue was the likelihood of danger from the operation of the base pending the hearing of the action. One of the experts who gave evidence on the plaintiffs' behalf claimed that if the base became operational, the plaintiffs would be subjected to emissions from it and that the majority were likely to suffer from adverse mental effects as well as adverse health problems and that between 2 and 15 per cent were likely to become "electrically sensitive" with serious neurological and cardiac reactions. It was contended that exposure of the plaintiffs for a period of even one year to eighteen months would have harmful effects on their growth and development, which effects would immediately manifest themselves within the first few weeks after transmissions began.

Mr Justice Geoghegan then considered the expert evidence that had been adduced on the defendants' behalf, which disagreed that emissions from the proposed station posed a risk to health of the plaintiffs and claimed that the radiation from the first defendant's transmitters did not possess enough energy to disrupt molecules in the body. Further, the defendants argued that radiations from FM Radio and Television transmitters were more powerful than the proposed transmitter in the instant case and that there was no scientific evidence to suggest that such transmitters had adverse health effects in populations which had been exposed to their transmissions over a long period of years.

The defendants accused the plaintiffs' experts of being selective in the studies on which they relied and claimed that they had not used systematic methods to evaluate scientific research.

Mr Justice Geoghegan then considered the principles to be applied when considering whether to grant a quia timet injunction. He stated that in such a case, where he was being asked to consider the risk of danger to the plaintiffs, he was entitled to have some regard to the respective qualifications, expertise and background of the experts being relied on. Mr Justice Geoghegan went on to consider the principles enunciated in Attorney General v Manchester Corporation [1891-4] All ER 1196 and Attorney General (Boswell) v Rathmines and Pembroke Joint Hospital Board [1904] IR 161, and concluded that for a quia timet injunction to be granted on a permanent basis there had to be a proven substantial risk of danger. In the latter case the court expressed the view that where there was conflicting expert evidence, the judge could not himself form an opinion as an expert and if the result of the conflict was to leave him in doubt, he could not in a quia timet action decide that the case had been made out.

Mr Justice Geoghegan considered it of particular relevance that no known ill-effects had arisen from radio and television transmitters over the past 50 years in Ireland when all he had to consider was whether there would be any danger of injury arising between the interlocutory application and the hearing of the action.

Mr Justice Geoghegan said that there was no difference in the legal principles to be applied in relation to applications for interlocutory quia timet injunctions and any other interlocutory injunction. On the evidence before him, he came to the conclusion that it was highly improbable at the very least that any injury would ensue to the plaintiffs between then and the hearing of the action.

In those circumstances he did not consider it just or reasonable to grant an injunction which would have disastrous effects as far as the first defendant was concerned. Finally, Mr Justice Geoghegan said that even if he had been wrong in declining to adopt the Campus Oil criteria, he would still come down in favour of refusing an injunction. Having regard to the stringent requirement of probability before a quia timet injunction would be granted on a permanent basis, he was very doubtful that there was a serious issue to be tried here, but even if there was, the balance of convenience required that the court should refuse any temporary injunction pending the hearing of the case.

Solicitors: Bourke, Carrigg & Loftus (Mayo) for the plaintiffs; W. G. Bradley (Dublin) for the first defendant; Chief State Solicitor for the second to fifth defendants.