Supreme Court refers costs calculation questions to CJEU due to Aarhus Convention and EU Directive complexities.

THE SUPREME COURT

[Appeal No: 314/2011 &

482/2011]

O’Donnell J.

Clarke J.

Dunne J.

Between/

Volkmar Klohn

Applicant/Appellant

and

An Bórd Pleanála

Respondents

and

Sligo County Council and Matthews Animal Collections Limited

Notice Parties

(to the original proceedings but not to the appeal)

Judgment of Mr. Justice Clarke delivered the 24th February, 2017.

1. Introduction

1.1 It is not, I think, an exaggeration to say that the common law jurisdictions of Ireland and the United Kingdom have struggled with

the implementation of the costs regime required by the Aarhus Convention and the relevant European Union measures adopted to give

effect to it in European law (being, originally, Art. 10a of Directive 85/337/EEC as inserted by Directive 2003/35/EC but now Art. 11 of

the codified Directive 2011/92/EU).

1.2 This appeal concerns certain issues relating to the amount of costs which can be awarded against the applicant/appellant (“Mr.

Klohn”) having regard to such European law as may be applicable in all the circumstances of the case.

1.3 It is important to record that, when a date was fixed for the conduct of the oral hearing in this appeal, the Court received a

request from Mr. Klohn in which he sought that the appeal be considered solely on the papers. The respondents (“the Board”)

indicated that they did not have any objection in principle to that course of action provided that they were not in any way prejudiced

by the absence of an oral hearing. In those special and unusual circumstances the Court formally sat at the time which had been

fixed for the oral hearing but simply indicated that it was proposed to consider the written submissions and determine whether it

would be possible to come to a just conclusion without an oral hearing.

1.4 The Court has concluded, and I agree, that it is necessary, in the context of this appeal, to refer a number of questions to the

Court of Justice of the European Union (“CJEU”) for its opinion. In those circumstances I did not consider it necessary, in order that

justice be done between the parties, that there required to be an oral hearing. However, a number of aspects of this appeal require

some brief comment.

2. The Written Submissions

2.1 The Constitution in Article 34.1 places a very high value indeed on justice being administered in public. In the past written

submissions filed by the parties in the context of an appeal to this Court might reasonably have been regarded as representing an

outline of the oral submissions to be made subsequently. However, increasingly, written submissions have come to form an

independent part of the process and it frequently is the case that, so far as at least some aspects of an appeal are concerned,

counsel are content to rest their case on what is set out in the written submissions. Thus what is said in written submissions has

increasingly come to be seen as a substantive part of the case made on appeal.

2.2 In those circumstances the Court has arranged that the public may have access to written submissions (subject to appropriate

exceptions consistent with any relevant requirement of law concerning privacy). (See Practice Direction SC15 – Written Submissions

of the 7th October, 2013).

2.3 It is, therefore, important to emphasise that, even where, exceptionally, this Court is content to deal either with the entirety of

an appeal or some aspect of an appeal or matter arising on an appeal without an oral hearing, it remains the case that there is public

access to the argument addressed in respect of the issues which arose so that justice can, therefore, be properly said to have been

administered in public.

2.4 In passing it is appropriate to note that applications for leave to appeal to this Court are now, under the provisions of the Court

of Appeal Act, 2014 (“the 2014 Act”), permitted to be determined on the papers and without an oral hearing (see s.7(1) of the Courts

(Supplemental Provisions) Act, 1961 as inserted by s.44 of the 2014 Act). In such a case the notice of application for leave and any

respondent’s replying notice are published so that the public can become aware of the issues raised.

2.5 However, the fact that it may be possible to comply with the requirement that justice be administered in public without always

having an oral hearing does not mean that such a course of action is desirable, at least in the vast majority of cases.

3. The Advantage of an Oral Hearing

3.1 To an outsider it may sometimes be considered that oral hearings add to the time and expense of litigation. While there may be a

superficial attraction to the argument in favour of that proposition, experience has shown that it will rarely be the case that there is a

significant saving in judicial resources. Indeed, this appeal is a very good case in point. The Court obviously did not have to sit to

hear oral argument and the time which the members of the panel assigned to hearing this appeal would have spent on that oral

hearing was, of course, saved. However, it is important to recognise that the time spent in court is only a fraction of the total time

spent by judges working on any individual case. That is particularly so in the case of appellate courts where the evidence and

materials on which the case is to be decided are normally to be found only in the record of the case as it was conducted at first

instance.

3.2 There can be no doubt that, even though the Court ultimately decided that the issues in this case required to be referred to the

CJEU, the time which the Court had to spend in considering and deliberating on the issues was significantly greater than the time

which it might have been anticipated would have been required to conduct the same task after an oral hearing. It is almost inevitably

the case that issues become much clearer as a result of an oral hearing. Sometimes issues drop away entirely because of argument or

questioning from the Court. Even where maintained issues may become refined and a greater measure of agreement between the

parties may result from oral debate or questioning in circumstances where the same level of agreement may by no means have been

apparent from written submissions.

3.3 Where disagreement remains it is almost always the case that the differing positions of the parties emerge with greater clarity

after oral debate and questioning from the Court.

3.4 Thus the time saved during the Court’s deliberation stage will almost always be at least equivalent to the time spent at the oral

hearing. The overall amount of judicial time spent on a particular appeal is not, therefore, increased by the existence of an oral

hearing and, in many cases, may actually be reduced.

3.5 Furthermore, as this appeal demonstrates, if it had not been the decision of the Court to refer matters to the CJEU, it would

almost certainly have proved necessary to have an oral hearing to explore some of the issues further or, alternatively, to have

engaged in a significant series of rounds of written procedures during which the Court would have addressed questions in writing to

the parties. The total amount of judicial resources used would undoubtedly have been all the greater.

3.6 I record these observations for the purposes of suggesting that the procedure adopted in this case should be very much the

exception and that oral hearings should continue to be the norm in virtually all substantive appeals. In saying that it must, of course,

be recognised that the Court has put in place many new measures designed to improve the efficiency of the oral hearing. The fact

that an oral hearing may ultimately reduce the amount of judicial resources required to be applied to an appeal is, in my view, clear at

least so far as the conduct of litigation in our system is concerned. But that does not mean that oral hearings should take any longer

than necessary.

4. Mr. Klohn’s Case

4.1 In the context of those comments two aspects of the written case made by Mr. Klohn do need some comment. The first concerns

a highlighted portion of his written submissions which is to be found towards the very beginning. As part of his proposal that there

should not be an oral hearing he suggests that litigants in person hardly ever (if ever) win against professional lawyers and seeks to

put that down, at least in part, to the oral hearing.

4.2 First I should say that the factual premise on which that submission is based is not, in my view, accurate. It may well be that

litigants in person do not have a particularly strong record of winning cases. But there are many reasons of that. However, the recent

experience of this Court demonstrates at least two cases (Tracey v. McDowell & ors [2016] IESC 44 and Tracey v McCarthy [2017]

IESC 7) where a litigant in person was successful in a matter before this Court against experienced counsel and a third case (Nowak v

Data Protection Commissioner [2016] IESC 18) where a litigant in person persuaded this Court to refer a matter to the CJEU

notwithstanding opposition from experienced advocates. Both of the decisions referred to and the reference in Nowak occurred in the

second half of 2016 or the early part of this year.

4.3 Furthermore, it must be recognised that one of the roles which experienced litigation lawyers fulfil is to filter both cases and the

arguments put forward in support of cases on the basis of the chances of success. Many cases are not brought at all, or are

compromised at a very early stage, because experienced litigation lawyers advise that there are either no or very weak chances of

success or defence. It has to be said that the same does not always seem to be true, at least at a general level, and across the

board, of litigants in person. Cases are frequently brought which have no chance of success in law. Cases are frequently defended on

bases which have no legal recognition. Furthermore, there is a category of litigant in person, although there is no suggestion that Mr.

Klohn fits into this category, who appear to bring or defend proceedings in a manner which is wholly outside legal norms. These and

other similar factors undoubtedly affect the figures.

4.4 But, contrary to Mr. Klohn’s suggestion, it is the experience of most judges, in my view, that the chances of success for a litigant

in person are enhanced by an oral hearing. There are at least some cases where the written presentation does not convey a

stateable basis for either a claim or a defence but where, as a result of discussion between the litigant in person and the Court at an

oral hearing, a point emerges which may be of greater substance. I feel it necessary to record that the suggestion that litigants in

person are disadvantaged by an oral hearing is misconceived.

4.5 An example of how issues can become distorted in a written procedure can be found in the written submissions filed in this case.

Mr. Klohn made one point of domestic Irish law. In his submissions he suggested that Wright v Hale [1860] 6 H & N 227 was authority

for the view that, “even under Irish law” costs provisions brought about by changed legislation applied to pending cases. Shortly

before the intended oral hearing the solicitors on behalf of the Board drew attention to the fact that this Court, in Sweetman v Shell

E & P Ireland [2016] IESC 58, had decided that the costs provisions found in s.50B of the Planning and Development Act, 2000, as

introduced by the Environmental (Miscellaneous Provisions) Act, 2011, were not retrospective so that, it was suggested, Mr. Klohn’s

submissions on Irish law were incorrect. In that regard the solicitors concerned undoubtedly had an arguable point.

4.6 In a reply, which was expressed in the sort of strong language which, unfortunately, is frequently found in written submissions

from litigants in person, Mr. Klohn attacked the position adopted by the solicitors concerned on the basis that his case was about

European law and not domestic law and suggested that the solicitors concerned had raised an issue which was “a total red herring

and irrelevant” and one which was “totally and absolutely untenable”. However, as the solicitors concerned pointed out, it was Mr.

Klohn who had raised, separate from the European law issues, a purely domestic Irish argument which had, arguably, been disposed of

in Sweetman.

5. Conclusions and Reference

5.1 Be that as it may the Court has decided to refer certain questions to the CJEU. The document which the Court proposes to

transmit to the CJEU is annexed to this judgment. However, I would afford the parties 14 days to make written observations on the

text of that document. I would emphasise that the Court has decided that a reference is required and notes that, ultimately, in

accordance with Union law, the formulation of the reference is entirely a matter for the Court. However, the Court will always be

prepared to consider any observations which the parties may have before finalising the text.