High Court Action - 10 June 05

Shell-Corrib Gas: Current High Court Proceedings – June ’05

Background:

At the end of March, 2005, an injunction was granted to Shell (SEPIL) by the High Court restraining the defendants from refusing to allow pipe-laying on their lands. This happened despite Shell’s failure to show proof in court that Compulsory Acquisition Orders (CAOs) had actually been signed by the relevant Minister. To date there is no proof of authorization for this confiscation of right from the owners and their subsequent beneficial grant to the Plaintiff, Shell.

The court proceedings took place over four separate appearances which were spread over several weeks at great cost and inconvenience to the landowners. This protracted exercise suited Shell whose tactics throughout the Appeals process and Oral Hearings have been marked by such harassment, gratuitously inflicted burdens and threat of intimidating costs.

In brief, the grant of an injunction is based on considerations of equity (i.e. the common law concept of fairness) and its purpose is to “freeze” matters until considerations of statutory law can be brought before the court. Shell had not entered on the defendants’ lands prior to the injunction application though it claimed to have had that CAO right for well over two years. The landowners had contested this at all times and Shell failed to show proof at any time eventhough the landowners stated their willingness at all times to permit entry on production of such proof.

The principle of laches alone should have ensured refusal of an injunction to Shell. (That is, where a right has been granted, proof that it has not been exercised in due course is ground for refusing its exercise as a matter of claimed urgency.) Not only did Shell not produce proof of authorization by the relevant Minister to the High Court, as requested by the Court, but it failed to explain the two and a half year delay. (It claimed the delay arose pending receipt of Planning Permission for the terminal-cum-refinery but it still does not have an equally necessary IPPC licence – i.e. permission to pollute – from the EPA.)

Nevertheless, Shell’s high-profile legal team managed, against all these odds, to obtain an injunction which was not only contrary to the status quo but enabled Shell to claim the high moral ground contrary to equity and natural justice. The fact that money and influence can buy this kind of representation, which can achieve such incongruous advantage, indicates an awesome gap between constitutional guarantees and delivery. Ironically, a corporation has no standing under the constitution other than through the legal fiction that it is a person!

As of Tuesday last the period of injunction ended with the commencement of the legal proceedings proper, but again the high-profile Shell legal team managed to obtained a deferral for several further weeks. This is in effect an extension of the injunction and the ‘rough’ transcript below gives a glimpse of the valiant efforts made by two defendants who are representing themselves against the delaying and obfuscating tactics of their eminent opposition.