THE HIGH COURT
			1997 No. 8558p
BETWEEN
BREDA CLIFFORD, CLIO FORDE LIMITED, JIM LENNOX, WORLD TRAVEL CENTRE LIMITED, GERRY O'NEILL, MAURICE O'NEILL & SONS LIMITED, PAT RYAN, LIAM MOHAN, ZB WINTERSCHLADEN TRADING AS B.B. HOPKINS, CARL GEISLER, STYLE CONCEPTS LIMITED, ANN SHEARY, JOHN LAWLOR, JOHN O'ROURKE, SWEENEY O'ROURKE LIMITED, GERALD NEWMAN, DAVID HENNESSY, AMERICAN HOLIDAYS LIMITED

			PLAINTIFFS
AND

THE DRUG TREATMENT CENTRE BOARD
			DEFENDANTS
JUDGMENT of Mr Justice McCracken  delivered the 7th day of November 1997 

	This is an application for Interlocutory Injunctions:-
	"Restraining the Defendants by themselves, theirs servant or agents or otherwise howsoever from using their premises at Trinity Court, 31/32 Pearse Street, Dublin 2 as a centre for referral for drug addicted patients for numbers in excess of the number for which the premises was so used prior to January 1992."
And:-
	"Restraining the Defendants by themselves, their servants or agents from continuing to maintain and operate the said premises at Trinity Court, 31/32 Pearse Street, Dublin 2 so as to be a nuisance to the Plaintiffs herein."

	The Plaintiffs are all owners or occupiers of business premises either on Pearse Street in Dublin or in its immediate vicinity.  The Defendant is a body established by the Minister for Health pursuant to the provisions of the Health (Corporate Bodies) Act, 1961 which authorises him to establish a body to perform functions in, or in relation to, the provision of a health service or two or more health services.  The Defendant was originally set up under the Drug Treatment Centre Board (Establishment) Order, 1988, which has now been amended by the Drug Treatment Centre Board (Establishment) Order, 1988 (Amendment) Order, 1992, which is Statutory Instrument No. 296 of 1992.  These Orders relate expressly to the premises known as Trinity Court, Pearse Street, Dublin 2, which are the premises the subject matter of these proceedings.  The functions of the Defendant are set out in Article 4(1), and while it is not necessary to set them out in full, the first function specified is:-
		
	"To organise and administer at the Centre such out-patient drug treatment service as may from time to time be approved by the Minister."

	There is also provision for administering a toxicology laboratory service, a counselling and advisory service, rehabilitation programmes and training programmes.   I note that the Minister does not appear to have given any specific approval under the above Article.	
	A number of Affidavits have been filed on behalf of the Plaintiffs giving accounts of the difficulties, and in some cases the dangers, which have arisen by reason of the presence of a large number of drug addicts attending the Defendant's premises in connection with one or more of their functions.  There are complaints of harassment, of theft, of threats of violence and of actual violence involving the use of syringes, which it is not necessary to set out in detail in this judgment.  It is particularly alleged that such incidents have increased substantially in the last five years, and are having a serious effect on the businesses carried on by the Plaintiffs.  It is also alleged by the Plaintiffs, and to some degree confirmed by the Defendant, that it intends to increase the services being provided by it in the near future.  The Defendant, on the other hand, says that the problems facing the Plaintiffs are no different from problems encountered by business people anywhere in the inner city, and in fact that the incidence of crime in the Pearse Street area is less than in many other inner city areas.
	The case made by the Plaintiffs is that their difficulties arise from the numbers which are attending the Defendant's Centre, and the inability of the Centre to cope with such numbers.  They say that the problem has now got to such an extent that it constitutes a public nuisance which affects them personally, or alternatively constitutes a private nuisance against them in relation to their use of their premises.  The Plaintiffs also make the case that the Defendant conducts its business negligently, and that it is an act of negligence on the part of the Defendant to accept more patients than the Centre can treat without causing a nuisance.
	I have no doubt that the Plaintiffs have a good arguable case, that the actions of the persons visiting the Defendant's Centre are such as to seriously affect the Plaintiffs in the conduct of their businesses and in their use of their premises, and also have made out a good arguable case that this is a nuisance caused by the numbers attending the Centre.  There remains, however, a legal question as to whether this nuisance is actionable.
	It is argued on behalf of the Defendant that there is considerable authority that where a statutory body is carrying out its statutory functions, no action will lie against that body for nuisance unless the body is carrying out its functions negligently.  This principle was set out by Lord Wilburforce in Alan v. Gulf Oil Refining Limited (1981) All E.R. 353 at page 356 where he said:-	

	"We are here in the well chartered field of statutory authority.  It is now well settled that where Parliament by express direction or by necessary implication has authorised the construction and use of an undertaking or works, that carries with it an authority to do what is authorised with immunity from any action based on nuisance.  The right of action is taken away (see Hammersmith and City Railway Co. v. Brand (1869) LR 4 HL 171...)
	To this there is made the qualification, or condition, that the statutory powers are exercised without 'negligence', that word here being used in a special sense so as to require the undertaker, as a condition of obtaining immunity from action, to carry out the work and conduct the operation with all reasonable regard and care for the interests of other persons."
 	
	The matter was put slightly differently by Viscount Duneden in Manchester Corporation v. Farnworth (1930) A.C. 171 at page 183 where he said:-

	"When Parliament has authorised a certain thing to be made or done in a certain place, there can be no action for nuisance caused by the making or doing of that thing if the nuisance is the inevitable result of the making or doing so authorised.  The onus of proving that the result is inevitable is on those who wish to escape liability for nuisance, but the criterion of inevitability is not what is theoretically possible but what is possible according to the state of scientific knowledge at the time, having also in view a certain common sense appreciation, which cannot be rigidly defined, of practical feasibility in view of situation and of expense."

	It does not seem to me that these authorities preclude the Plaintiffs from bringing or succeeding in an action for nuisance.  I accept that it may well be at the trial of the action that the Defendant would prove that any nuisance caused to the Plaintiffs was the inevitable consequence of  the performance of a statutory duty or power by the Defendant, but I do not think that such a case has been made on Affidavit by the Defendant in the present circumstances.  This is a matter which will have to be determined on oral evidence.
	I should also say that, while on the evidence before me, the Plaintiffs have a very weak case in relation to actionable negligence, the absence of negligence is a matter to be proved by the Defendant, having regard to the special nature of the negligence referred to in the Gulf Oil case.  I am quite satisfied that, once the Plaintiffs have proved a prima facie case of nuisance, the onus shifts to the Defendant to prove why they should be exempt from liability for that nuisance and I do not think that onus has been discharged in the present case.  Indeed, it would be extremely difficult to discharge it other than by oral evidence.
	I turn then to consider whether damages would be an adequate remedy to the Plaintiffs.  I think then quite clearly would not, as the losses suffered by the Plaintiffs are not merely pecuniary losses related to the turnover of their business, but also include personal inconvenience and trauma.  Equally, I do not think that the Defendant could be compensated by an award of damages should the Interlocutory Injunction be wrongly granted.  The loss would not so much be a pecuniary loss to the Defendant, but a loss to the persons being treated by them.  
	Finally, I turn to consider the balance of convenience.  It is urged on me on behalf of the Defendant, and I think rightly urged, that I must take into account, not only the convenience of the Defendant, but also the convenience or damage to the persons attending the Centre, and indeed the public at large.  The Plaintiffs are seeking to reduce the numbers at present attending the Centre to the 1992 level.  The immediate result of this would be that less drug addicts would be treated, which is clearly against the public interest, besides depriving possibly hundreds of individuals of badly needed treatment.  I certainly do not think that I would be justified in taking such a step at interlocutory stage and on possibly a temporary basis.
	On the other hand, I accept that the Defendant intends to expand the use of the Centre.  An injunction restraining such expansion will not affect existing patients.  Furthermore, if the Plaintiffs were to succeed at the trial, it might well be that a Judge would order treatment to cease in respect of any additional patients since the issue of proceedings.  I do think, therefore, that the status quo should be maintained, and I would propose to grant an Interlocutory Injunction restraining the Defendant by itself, its servants or agents or otherwise howsoever, from using its premises at Trinity Court, 31/32 Pearse Street, Dublin 2, as a Centre for referral of drug addicted patients for numbers in excess of the number for which the premises was so used on 21st July, 1997, the date of issue of these proceedings.