Original language


Date of text
Type of court
National - higher court
Court name
High Court of Ireland
Reference number
[2006] IEHC 391
Specific Performance, Contract, Evidence, Liability, Damages
Free tags
Environment gen.
Waste & hazardous substances
A large area of the site, owned by the County Council of Meath, was heavily polluted with fuel. After some investigation, the defendant Irish Shell admitted that it had originated from the site of the Shell garage immediately adjacent to the site. Thereafter, following some considerable negotiations, the first named defendant agreed to clean up the site. Their consultants and contractors then went in on site and commenced to carry out that remediation. Shell became dissatisfied with their contractor and their consultant as they were unable to reach the target levels. In or about November, 2004, Shell asked their contractor and consultant to leave. It is contended that from November, 2004 no work was carried out by Shell on that site. Between November, 2004 and 19th January, 2006 Shell, through their solicitors, commenced a correspondence, which attempted to renegotiate the terms of the basis on which they were to remediate the site. There is no dispute that there has been pollution on the council’s site which originated from Shell’s site. There is no dispute that they agreed to remediate. There is a dispute as to the level and also as to whether in addition to all the other costs the first named defendant should pay the consequential costs. By reason of contamination there was an obligation to cease the work on the civic offices in order to allow remediation works to be carried out and therefore the plaintiff has incurred additional and on-going costs to the contractor as well as administration costs and legal costs. As a result of the first named defendant failing to abate the nuisance, the plaintiff has suffered additional loss, damage and expense. The issue that the Court has been asked to determine is whether or not a letter dated the 12th October, 2001, from the solicitors for the first named defendant to solicitors for the plaintiff, headed ‘Without Prejudice’ and as part of a chain of ‘Without Prejudice’ correspondence, should be admitted on the grounds that it is evidence of a concluded compromise agreement between the parties. The plaintiff contends that it should be admitted and seeks to isolate one particular sentence within that letter for the purpose of allegedly evidencing to the Court that the first named defendant had, in fact, admitted liability for all consequential losses arising from the building contract. The first named defendant submitted that the letter of 12th October, 2001, should not be admitted since it does not constitute an agreement as advanced by the plaintiff. Nowhere is there an offer and acceptance evidencing an agreement that the first named defendant shall be liable for the consequential losses arising from the building contract. At best, the first named defendant contends, the letter constitutes an agreement in respect of remediation and the first named defendant being liable for the cost of same. Without prejudice privilege,covers communications which are made for the purpose of a genuine attempt to settle a dispute. Generally these communications are not admissible in evidence as the primary rationale for the privilege attaching to 'without prejudice' communications is the public policy of encouraging litigants to settle their differences without recourse to litigation, and without the risk of the content of the negotiations being used in court proceedings if the matter does not settle. However there are exceptions to the 'without prejudice rule', for example, where there is a dispute as to the terms or existence of a concluded compromise settlement. The Court considered that the plaintiff at all material times co-operated fully and relied upon the defendants’ advice and expertise. Secondly, the remediation agreement was entered into by the defendant after diligent negotiations between them and the plaintiff. In all of the circumstances it accepted the plaintiff’s claim and directed specific performance of the remediation agreement dated 28th February, 2003 together with a mandatory injunction requiring the first named defendants to take immediate steps to remediate the site in accordance with the levels agreed between the parties.