University College Cork (UCC) is facing a massive legal bill running to millions of euros after the Court of Appeal today granted the ESB full costs of the legal battle related to flooding in Cork nine years ago.
The Appeal Court has already ruled the ESB has no liability for extensive flood damage to buildings on the campus of UCC after floods affected large parts of Cork city in late 2009.
The three judge court overturned a High Court finding the ESB was 60 per cent liable in respect of flooding and warnings.
The disputed High Court findings were made in October 2015 after a 104 day case, the first here to fully test the liability of a dam operator.
Today, the Court of Appeal granted the ESB its full costs but put a stay on the matter in case UCC appeal the decision on the main action to the Supreme Court.
Paul Gallagher SC for UCC had asked the court to reduce the costs due on the High Court case by 10 per cent as he said nine days out of the 104 was solely on one issue relating to the buildings.
He said UCC was successful in part of that aspect of the case and had won on that small issue in the High Court.
Counsel for ESB David Hardiman SC said it was not possible to separate out the costs.
Giving the courts ruling Mr Justice Sean Ryan with Ms Justice Mary Irvine and Ms Justice Maire Whelan said the claim brought before the court by UCC was held to be unfounded.
He said although the separate issue was decided in favour of UCC, it had to be seen in the context of the claim as a whole.
In its judgment on the main case, the Appeal Court this week said the High Court judgment, if it was allowed to stand, would represent a "significant alteration" in the existing law of negligence and nuisance that would be contrary to the statutory mandate of the ESB in respect of electricity generation and would "not be consistent with reason and justice".
The damage arose "from a natural event", ESB did not cause the flooding of UCC's buildings and it had no legal duty to avoid unnecessary flooding, the court ruled.
In a subrogated claim brought on behalf of its insurer Aviva, UCC had claimed the ESB's management of water releases from two hydro-electric dams on the River Lee lead to significant unnecessary additional flooding causing substantial damage to 29 buildings on the UCC campus.
Aviva sought €20m damages for losses at UCC, plus another €14m for losses suffered by other property owners.
It was claimed warnings of heavy rainfall were issued by Met Eireann for the River Lee catchment area on 12th, 15th and 18th of November but the ESB failed to adequately respond, water levels at the reservoirs were kept at levels too high for the rainfall expected and there was inadequate storage capacity for flood mitigation.
On November 19th 2009, following heavy rainfall, the ESB rapidly increased the amount of water released from both dams at unprecedented rate of discharge and failed to act preemptively by releasing amounts of water from the dam at a rate to avoid or mimimise the risk of flooding, it was alleged.
The ESB denied liability and argued the existence of the dams had reduced the level of water that came down to UCC.
Both sides had appealed aspects of the High Court findings.