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1. On the afternoon of Monday the 13th of December 1999, Counsel for the Plaintiff applied to me for an Interlocutory Injunction restraining the First Defendant from carrying out a road scheme at the Glen o’the Downs, County Wicklow until the trial of the action herein.

2. I reserved my judgment for some thirty five to forty minutes. Just before I began delivering it, Counsel for the Plaintiff mentioned the possibility of his client making an application under Article 234 (formerly Article 177) of the European Treaty and he stated that he was mentioning the matter at this point in order to preserve his position.

3. I then proceeded to deliver my judgment, giving reasons why I proposed to refuse to make the order sought by the Plaintiff.

4. Immediately following the delivery of this judgment, Counsel for the Plaintiff said he would like to consider his client’s position in light of my judgment and requested that I sit the following day, that is, yesterday Tuesday the 14th of December 1999, to have the matter mentioned.

5. Counsel for the First Defendant gave a commitment that no works would be carried out by his client in the meantime.

6. When the matter was mentioned yesterday, Counsel for the Plaintiff requested me to refer a number of questions, styled as preliminary questions, to the Court of Justice of the European Communities, pursuant to the provisions of Article 234 and in this connection produced a motion paper which expressed itself to be returnable for the previous day, that is, Monday the 13th of December 1999.

7. The text of Article 234, where relevant, provides as follows:-

8. Clearly it is impossible, at this stage, for me to refer preliminary questions to the Court of Justice, given that I have already given my decision on the Plaintiff’s application and cannot alter that situation.

9. Furthermore, the authority to refer a question to the Court of Justice which is conferred on the Court of a Member State by Article 234 appears, on its face at any rate, to be contingent upon that Court being of opinion that a decision on the question by the Court of Justice is necessary to enable it to give judgment - a precondition, if such it be, that cannot apply in this instance.

10. For this reason, I see no option but to refuse the Plaintiff’s application.

11. I am prepared, however, to make short term arrangements, to enable, if necessary, the Plaintiff to appeal either or both of my decisions if he so wishes. In this latter regard I am in particular mindful of the observations of the Court of Justice in case C - 213/89 R.-v- Secretary of State for Transport, ex parte Factortame Limited and Others at paragraph 21 (cited in the second edition of “European Law” by Craig and DeBurca at page 262), not to mention, of course, Article 34(4)(3) of Bunreacht na hEireann.