Friends of the Irish Environment Clg v The Government of Ireland & ors

Factual and Procedural Background

The Applicant seeks judicial review of the Government of Ireland's decision to approve the National Mitigation Plan published on 19th July 2017 under section 4 of the Climate Change and Low Carbon Development Act 2015. The plan aims to ensure compliance with the State's climate change obligations. The Applicant contends the plan fails statutory requirements and breaches national law, EU law, and the Charter of Fundamental Rights, particularly Article 3. The proceedings are advanced with a hearing date set.

This application concerns the admissibility of certain documents proposed for the substantive hearing, including a statement by a UN Special Rapporteur on Human Rights and Environment. The Applicant filed a late affidavit without court leave, updating the court on scientific and legal developments relevant to the case. The Respondents objected to the late filing and challenged the admissibility of the Special Rapporteur’s statement.

Legal Issues Presented

1. Whether the late-filed affidavit containing updated scientific and legal materials, including the UN Special Rapporteur’s statement, should be admitted in the proceedings.
2. Whether the statement of the UN Special Rapporteur on Human Rights and Environment qualifies as admissible expert evidence under Irish law.

Arguments of the Parties

Applicant's Arguments

• The statement by the UN Special Rapporteur is a cogent expert statement from an authoritative source central to the proceedings.
• No special time limits were fixed for filing affidavits; therefore, leave of the court was not required to file the late affidavit.
• If leave is required, the Applicant requests the court to grant it at this hearing.
• The statement addresses the serious human rights implications arising from the inadequacy of the National Mitigation Plan.

Respondents' Arguments

• The late affidavit was filed without leave, contrary to Order 40, rule 19 of the Rules of the Superior Courts, which restricts late filings unless leave is granted.
• The UN Special Rapporteur’s statement lacks clarity on the author’s qualifications and expertise regarding national, European, and international human rights law.
• The statement is not sworn as an affidavit, though this point was less contentious during the hearing.
• Expert evidence on foreign law is only admissible when foreign law is a matter for determination; no such issue arises here.
• Expert evidence is inadmissible on domestic law matters; legal arguments are for the court to decide, not expert witnesses.
• The statement does not comply with rules regarding the independence and role of expert witnesses under Order 39, rule 57.
• The statement is irregular, unclear in purpose, and does not comply with evidential rules, rendering it inadmissible.

Table of Precedents Cited

Court's Reasoning and Analysis

The court considered the circumstances of the late affidavit filing and the parties’ agreement on admitting three of the four documents, focusing its analysis on the UN Special Rapporteur’s statement. The court acknowledged the author’s extensive environmental legal background and UN appointment but noted the statement was voluntary, not authorized by the UN, and lacked sworn affidavit status.

The court examined the statement’s content, which opined on Ireland’s positive human rights obligations to mitigate climate change, referencing international and national jurisprudence, including Irish courts. However, the court found the author did not sufficiently establish expertise to provide legal opinions on national or foreign law, as required under Irish evidential principles and the precedent in O'Brien.

The court emphasized that expert evidence is inadmissible on domestic law matters and that legal arguments must be submitted to and determined by the court itself. The statement failed to comply with rules governing expert witness independence and admissibility. The court declined to dissect the statement to admit parts selectively, concluding the statement in its entirety was inadmissible.

Regarding the late filing, the court held that, notwithstanding the absence of fixed time limits, it was just and proper to permit the affidavit’s filing. However, this did not affect the inadmissibility of the statement contained therein.

Holding and Implications

The court REFUSED TO ADMIT the statement of the UN Special Rapporteur on Human Rights and Environment as evidence in the judicial review proceedings.

The affidavit containing the statement was permitted to be filed late, subject to court leave, which was granted. The direct effect is that the statement will not be considered at trial. No broader precedent was established beyond reaffirming established principles on expert evidence admissibility, particularly regarding legal opinions and foreign law evidence.