Supreme Court dismisses appeal against costs order against notice party in judicial review case.

THE SUPREME COURT

Denham J.

Murphy J.

McGuinness J.

1995 No. 142 JR

Appeal No. 270, 272, 292/96

BETWEEN/

JOSEPH O’CONNOR

APPLICANT/APPELLANT

and

NENAGH URBAN DISTRICT COUNCIL

RESPONDENT

and

DUNNES STORES LIMITED

NOTICE PARTY

Judgment delivered on the 16th May, 2002 by Denham J.

1. On the 16th July, 1996 the High Court (Geoghegan J.) refused the application of the applicant/appellant (hereinafter referred to as

the applicant) for Judicial Review. It was ordered that the notice party recover costs as against the applicant. A stay was put on the

order for costs pending appeal. The court made no order as to costs in respect of the respondent.

2. Against that order the applicant filed a full appeal. However, the appeal now relates solely to the issue of costs.

3. Nenagh Urban District Council, the respondent, cross appealed against the failure of the High Court to grant an order for costs to

the respondent against the applicant. This cross appeal has been withdrawn.

4. Dunnes Stores Limited, the notice party, cross appealed against the order of the High Court insofar as it declared that the

applicant had locus standi to maintain the application for judicial review and further that the certificate dated the 27th day of

September, 1994 issued by the respondent was of a sufficiently public nature as to render it amenable to judicial review. However,

this was not pursued.

5. Thus the sole issue on this appeal is whether the notice party is entitled to costs against the applicant.

6. Counsel for the applicant filed written submissions which I have considered. In oral submissions counsel stressed that the

application for judicial review was a matter of public interest, in relation to a public document, and that it was a matter of public

importance. Counsel for the applicant submitted further, that it was a matter between the applicant and respondent and not the

notice party. He submitted that any absence of planning permission was damaging - not any absence of such certificate as was in

issue. Further, counsel submitted that the applicant failed on a technicality, and he should not be penalised by an order for costs.

Counsel conceded that the notice party was entitled to be in court and to be heard. But, he submitted, the applicant should not be

at risk of costs.

7. Counsel for the notice party filed written submissions which I have considered. In oral submissions counsel stressed the nature of

the original orders sought on the application for judicial review and their potential affect on the notice party. Counsel for the notice

party submitted that if the certificate were quashed it would have a serious impact on the notice party, it would affect any defence

to a prosecution under the planning code. Further, counsel contended that even though time limits as to prosecutions have expired, if

a development is unauthorised it is not rendered authorised by the lapse of time. He submitted that the certificate could be relevant

to a sale or to compensation under a compulsory purchase order.

8. Essentially the matter of costs is at the discretion of the court. Order 99, R. 1(1) provides:

“The costs of and incidental to every proceeding in the Superior Courts shall be in the discretion of those courts respectively.”

In general costs follow the event Order 99, Rule 1(4) provides:

“The costs of every issue of fact or law raised upon a claim or counterclaim shall, unless otherwise ordered, follow the event.”

The specific situation of a person affected by the avoidance of a decision was referred to in O’Keeffe v An Bord Pleanala [1993] 1 I.R.

39 at p. 78. Finlay C.J. stated:

“If application is made for liberty to issue proceedings for judicial review and the claim includes one for certiorari to quash the

decisions of a court or of an administrative decision-making authority the applicant must seek to add as a party any person

whose rights would be affected by the avoidance of the decision impugned. If liberty is granted the court should except for

special reasons ordinarily add such person as a party.”

The court was referred to F. v Ireland and the Attorney, Supreme Court, (Unreported), 27th July, 1995. In that case Hamilton C.J.

stated:

“The question of the costs of any proceedings before the Court is a matter for the discretion of the judge hearing and

determining such matter.

The Court has considered the judgment of the learned trial judge on the question of cost as contained in Counsel’s note of his

ex-tempore judgment on the question of costs.

The Court is satisfied that the learned trial judge exercised his discretion in this matter judicially and in a proper manner and see

[sic] no grounds for interfering with the order made by him in respect of the proceedings before him.

This Court has a discretion with regard to the costs of the proceedings before it.

There is no doubt but that the appeal before this Court involved issues of considerable public importance and that it was

desirable, in the public interest, that a decision on the issues involved be reached as early as possible having regard to the

situation, in respect of many orders made pursuant to the provisions of the Act which would arise if the Plaintiff/Appellant had

been successful in his challenge to the impugned provisions of the Act.

There is no doubt but that the Attorney General regarded this case as a “test case” and was anxious that the matter be

disposed of as quickly as possible.

By notice of motion dated the 19th day of October, 1993, the Attorney General sought an order directing that the Circuit Court

appeal be disposed of prior to the determination on the constitutional issues raised in these proceedings.

That application was refused in the High Court (Johnson J.)

The Attorney General by notice dated the 4th day of January, 1994 appealed to this Court against such decision but by letter

dated the 18th day of February 1994 withdrew that appeal.

His action in that regard was a clear indication of his desire that the issues raised in these proceedings be determined.

While this case was of considerable importance to the parties involved, it was also of considerable importance to the parties

involved in at least three thousand cases in which orders had already been made under the Judicial Separation and Family Law

Reform Act, 1989.

It was conceded that the wife was entitled to the benefit of the Attorney General’s scheme and the Court will make any

necessary recommendations in that regard.

In the particular circumstances of this case, the Court considers that it should exercise its discretion with regard to the costs

of the proceedings before it by awarding the costs of the appeal to the Plaintiff/Appellant against the Attorney General.”

9. In this case the learned High Court judge held:

“. . . It is difficult to know what the just costs Order should be, but contrary to Mr. O’Sullivan’s submissions in my opinion, I

have no doubt at all that the Notice Party, Dunnes, should be entitled to their costs. It is true they were not named as

Respondent originally but they had to be a Notice Party, they had to be in on the proceedings. They were absolutely entitled to

be represented and to appear and to participate in the entire of the application. In my view, their interests were, in one way or

another, at stake. I do not accept the submission at all that they should have simply relied on whatever arguments the Urban

District Council put forward. I have no hesitation in granting Dunnes their costs against the Applicant.

I am going to make no Order as to costs as against the Nenagh Urban District Council for a combination of reasons in a sense.

First of all, on some major issues the Applicant has been successful -- by major issues I mean issues that took up quite a bit of

time of legal argument in the court -- the Applicant was successful. That of itself is not a reason for making no Order as to

costs. Normally if a party wins on one of his grounds he is entitled to his costs, the mere fact that he loses on some other

grounds does not mean that there should necessarily be no Order as to costs. I do feel that that factor combined with the fact

that I am satisfied that despite Mr. O’Connor’s obvious self interest in this matter having regard to the fact that he was a

competitor in Dunnes Stores, I am also satisfied that he did consider this was a matter that should go to court on the basis of

what he saw in the planning file and saw the maps; he was a public representative himself. The document that the Urban

Council used and used as part of a certificate was itself quite an ambiguous document because it appears that distinctions are

being made between certifying that there has been compliance and, on the other hand, certifying that there is no objection.

That was bound to lead to considerable confusion. I think Mr. O’Connor cannot be blamed for not comprehending all of that. I

think on balance that a fair costs Order would be to make no Order as to costs as against the Urban Council but Dunnes are

entitled to their costs against the Applicant.”

10. There is no doubt that the notice party would have been affected if the original orders sought on judicial review by the applicant

had been granted. The applicant sought originally, inter alia:

“(a) An Order of Certiorari pertaining to the said Certificate that it should be brought before this Honourable Court and quashed

on the grounds that the premises as built do not comply with the Planning Permission provided in 1974, and the development is

an unauthorised development.

(b) A Declaration that no reasonable Planning Authority could not have a reasonably founded objection to the development as

developed on the grounds that not only is the development an unauthorised structure and development, but also is developed

contrary to the Town Plan for Nenagh, and in particular is built in circumstances where:

(i) The proposed development does endanger public safety by reason of traffic hazard because the site is located on a

National Primary Road, carrying a heavy volume of traffic and the traffic movements generated by the development would

interfere with the safety and free flow of traffic on the road.

(ii) The proposed development is considered premature pending the provision of a public sewerage scheme for the area,

and pending the improvement of the public water supply which is inadequate to serve such a commercial development and

for fire fighting purposes.

(c) An Order that the use and occupation of the building and grounds without proper water disposal and dispersal assistance,

and in particular without any or any proper sewerage system, is contrary to the proper development of the area and in

particular to the development plan for the Town of Nenagh.

(d) An Order of mandamus requiring the Respondents to take appropriate steps to prevent occupation and use of the building

for the reasons:

(i) The proposed development does endanger public safety by reason of traffic hazard because the site is located on a

National Primary Road, carrying a heavy volume of traffic and the traffic movements generated by the development

interfere with the safety and free flow of traffic on the road.

(ii) The proposed development is considered premature pending the provision of a public sewerage scheme for the area,

and pending the improvement of the public water supply which is inadequate to serve such a commercial development and

for fire fighting purposes.

(e) The reasons for refusal of the Application for Planning Permission in 1981 were in particular that the lands where it was

intended to carry out this development did not have sewerage facilities available and did not have water disposal or dispersal

arrangements necessary to satisfy the needs of the development or indeed any development on the site. Subsequently, the

development has been carried out without taking into consideration the requirements as set out above, and in the Winter of

1994/95, the premises has been flooded on a number of occasions and the sewerage has over-flowed. An unsatisfactory

position now pertains damaging the reputation of the business community of Nenagh in the eyes of the public and detracting

from Nenagh as a shopping town.

(f) The Applicant further states that in carrying out development at his own premises he was required by Nenagh Urban District

Council to carry out a significant water disposal and dispersal requirement, including the expense of significant sums of money

to comply with the proper planning and development of the area He was further required to make significant changes to his own

development in order that it would comply with the proper planning and development of the area, which said requirements the

Applicant fulfilled. The Applicant claims that all applications for Planning Permission should be dealt with on the same basis and

that failure to comply with Planning Permission should be addressed by the Planning Authorities on the basis that all parties are

equal, and required to maintain the same standards.”

Consequently, it was appropriate that the notice party be joined in the action. Further, it was not appropriate for the notice party to

withdraw during the trial on the application for the judicial review to be limited, at the applicant’s request, to the certiorari and

declaration.

While there is an element of public interest in this case it was a situation where initially the remedies sought if granted would have

had a profound affect on the notice party. I would distinguish this case from F. v Ireland and the Attorney General. This case is not a

test case, there are not 3,000 cases relevant to its outcome, and it does not involve issues of considerable public importance.

A court gives great weight to the views of the learned trial judge. I am satisfied that the trial judge in this case applied the correct

principles. I would not interfere with the exercise of his discretion. It is clear that:

(a) whereas there was an element of public interest, the application as originally drafted sought specific remedies potentially

detrimental to the notice party;

(b) the notice party was a necessary party;

(c) the notice party participated fully in the trial;

(d) the notice party was an entirely innocent party and acted in good faith at all times;

(e) the notice party was successful in the proceedings;

(f) no compelling reasons have been established as to why costs should not follow the event;

(g) the learned trial judge exercised his discretion in accordance with law.

11. For the reasons stated I would not interfere with the exercise of the discretion of the learned trial judge. I would dismiss the

appeal.