Greenpeace Ltd. v HM Inspectorate of Pollution No.2

Factual and Procedural Background

This appeal arises from a decision by a judge to refuse a stay of a government department's decision to issue a variation of an authorisation under the Radioactive Substances Act 1960 concerning the premises of Company A at a nuclear site. The variation authorised Company A to commence a testing programme on a thermal oxide reprocessing plant (THORP), constructed at the site, which had been completed but not yet operated. The appellant, an environmental organisation, challenged the variation by seeking judicial review and leave to appeal was granted. The substantive hearing of the judicial review was scheduled for a later date. The appellant sought a stay of the Departments' decision pending that hearing, which was refused by the judge. This appeal concerns the refusal of that stay application.

Legal Issues Presented

1. Whether the court had jurisdiction to grant a stay of a decision of government departments in judicial review proceedings.
2. The appropriate principles and approach to be applied when considering a stay of a government decision that affects third parties who are not parties to the proceedings.
3. Whether the balance of convenience favoured granting a stay of the Departments' decision authorising Company A to commence testing on the nuclear plant.
4. Whether fresh evidence relating to the phased nature of the testing programme justified revisiting the exercise of discretion in granting or refusing a stay.
5. Whether an undertaking as to damages should be required from the appellant when seeking interlocutory relief affecting a third party.

Arguments of the Parties

Appellant's Arguments

• The appellant challenged the decision to vary the authorisation on environmental and safety grounds, arguing that any additional emission of radioactive material is harmful and should not be permitted without clear benefit.
• The appellant contended that the testing programme should not proceed pending the judicial review, emphasizing the potential harm from emissions.
• It was suggested that a partial stay could be granted delaying the more intensive second phase of testing to reduce environmental risk while minimizing financial loss to Company A.

Respondents' Arguments

• The Departments and Company A argued that the judge correctly exercised discretion in refusing the stay, emphasizing the minimal environmental impact of the testing and the significant financial loss Company A would suffer from delay.
• They contended that the appellant lacked locus standi to bring the application.
• The respondents argued that the fresh evidence of phased testing did not invalidate the judge’s original reasoning and that the balance of convenience did not favour granting any stay.
• They maintained that the appellant had not offered any undertaking as to damages, which was a relevant factor in refusing interlocutory relief.

Table of Precedents Cited

Court's Reasoning and Analysis

The Court of Appeal considered whether the judge had jurisdiction to grant a stay of the Departments' decision and accepted that he did, relying on established authority. The central difficulty was the absence of Company A as a party to the proceedings, though the decision affected its operations. The judge treated the stay application as analogous to an interlocutory injunction against the third party and applied the American Cyanamid principles accordingly.

The judge balanced the risks of environmental harm against the financial loss Company A would suffer if testing were delayed. The Departments' expert evidence indicated that additional radioactive discharges from the testing would be minimal and within existing authorised limits. Company A claimed significant daily financial losses from delay. The judge found no undertaking as to damages had been offered by the appellant, which weighed against granting the stay, especially given concerns about the appellant's ability to pay damages.

Fresh evidence disclosed the phased nature of the testing programme, with an initial phase involving minimal emissions already underway, and a more significant second phase about to commence. The appellant proposed a partial stay delaying only the second phase to reduce environmental impact while limiting financial loss. The respondents argued this did not undermine the judge’s overall reasoning. The court agreed, holding that the fresh evidence did not invalidate the judge’s exercise of discretion.

One judge dissented in part, suggesting that the court should exercise its discretion to grant a limited stay delaying the second phase of testing by a few days pending the substantive hearing, as the first phase involved negligible risk and the delay would be limited.

Holding and Implications

The Court of Appeal DISMISSED THE APPEAL, upholding the refusal to grant a stay of the Departments' decision authorising Company A to commence testing on the nuclear plant.

The direct effect of the decision is that the testing programme may continue without delay pending the substantive judicial review hearing. The court confirmed the appropriateness of applying interlocutory injunction principles to stay applications affecting third parties not joined in the proceedings and upheld the importance of considering undertakings as to damages in such cases. No new precedent was established beyond the application of existing principles to the facts.