Supreme Court remits planning application to Board and awards 75% costs to applicant.

THE SUPREME COURT

Appeal No: S:AP:IE:2017:000013

Record No: 2014/488JR

Clarke C.J.

O’Donnell J.

Dunne J.

O’Malley J.

Finlay Geoghegan J.

Between/

Kathleen Connelly

Applicant/Respondent

And

An Bord Pleanála

Respondent/Appellant

And

Clare County Council

McMahon Finn Wind Acquisitions Ltd

Notice Parties

Ruling of the Court (ex tempore) on the Final Order and on Costs delivered the 30th July, 2018 by Clarke C.J.

1. I propose to deal first with the substantive order which the Court should make. As noted in the judgment in this case one

of the matters on which the Court required further submissions from counsel was as to whether, and if so in what way, the

planning application which was under challenge in these proceedings should be remitted back to the Board. All parties were

agreed that the matter should be remitted back. There was, perhaps, some difference of emphasis between the parties as to

the terms on or manner in which that remittal should take place.

2. The Court is anxious to minimise the risk of further disputes between the parties arising from the process which the

Board follows hereafter. At the same time the Court is mindful of the fact that, by being overly prescriptive, the Court might

make matters worse rather than better.

3. On balance the Court has come to the view that the appropriate form of order to make should be an order remitting the

matter back to the Board to determine the planning application concerned in accordance with law as interpreted in the

judgment of this Court.

4. However, in making that general order, the Court had regard to and wishes to note that there was no challenge to the

process which took place before the Board up to the point when, as a result of the Inspector’s Report, the Board decided to

seek further information and a natura impact statement. The Board is clearly entitled to take that fact into account in

deciding what procedures it requires to follow hereafter.

5. Furthermore, the Court notes that there was some suggestion that different considerations may apply today than applied

at the time when the Board made its original decision in this matter. The Court is not in a position to comment one way or

the other as to whether there have been any such changes or as to their materiality or as to the effect which any such

changed circumstances might have on the procedures which the Board needs to follow now. These are matters to be

considered by the Board when the matter is remitted back to it and nothing in this ruling should be taken as indicating a view

one way or the other as to whether, and if so in what way, the Board should deal with any potentially changed

circumstances.

6. On the question of costs the Court would wish to emphasise strongly that it is important for parties generally to recall that

the starting point for a consideration of costs in any case must be the result. Ultimately Ms. Connelly won the case and

successfully resisted the appeal. It is neither necessary nor appropriate, in the context of costs, to attempt to parse and

analyse in detail all of the issues which may have been canvassed in the course of proceedings or appeals and identify the

number of issues on which one or other party might be said to have succeed in whole or in part. Rather the overall

approach, identified in Veolia Water and confirmed on many occasions since, is that the starting point has to be to decide

whether the plaintiff or applicant has to come to court to achieve something which they could not otherwise have achieved

or whether a defendant or respondent had to come to court to resist a claim found to be unmeritorious. The applicant in this

case clearly falls into the category of a party who had to come to court in order successfully to have the permission granted

quashed.

7. What the Veolia jurisprudence suggests, however, is two things. First it is important to discourage parties from, as it

were, throwing the kitchen sink into every case thus significantly increasing the costs and the amount of court time and

resources which require to be deployed in resolving the case. Just because a party turns out to have one good point does not

justify raising a large number of unmeritorious points.

8. However, that proposition needs to be qualified by reference to the fact that an otherwise successful party should not be

deprived of full costs unless it can be shown that it is clear that the raising of unmeritorious points added materially to the

overall cost of the proceedings. In making that assessment it will rarely be appropriate to attempt either a very precise

calculation of the extent to which costs may have been increased or, indeed, an overly meticulous approach to identifying

the precise issues or variations on issues, which were canvassed. To take that approach would be counterproductive in that

it would turn every costs application into a major further hearing resulting in even more costs. In that context it is worth

noting that the hearing this morning took over an hour.

9. Rather a broad brush approach should be adopted to identify whether, and if so to what general extent, it can be said that

it is clear that significant areas of the case, adding materially to the cost, were run and lost.

10. Applying that approach to the facts of this case the Court feels that it cannot ignore the fact that there were a number of

significant issues raised (not least those connected to the EIA) which must undoubtedly have added materially to the costs of

the High Court and added somewhat to the costs in this Court and on which Ms. Connelly failed. But at the same time the

Court has to acknowledge that Ms. Connelly succeeded in the proceedings in the High Court as she obtained the only actual

relief sought being to quash the planning permission and also succeeded on the appeal. It would be totally counterproductive

to attempt to now ask the High Court judge to assess costs on the basis of the issues on which Ms. Connelly ultimately

succeeded by comparison with those on which she has ultimately failed. Rather it is appropriate that the Court should do the

best it can in all the circumstances and therefore the Court proposes to award Ms. Connelly 75% of the costs of both the

High Court and of the appeal to this Court.

11. Two final matters remain. The first concerns the costs of the application seeking a certificate to permit an appeal to the

Court of Appeal which was made in the High Court after that court had delivered judgment. While the High Court refused

that certificate it is now clear that there were significant issues of importance which the Board was entitled to pursue and

that on some of those issues the Board has succeeded. In those circumstances the Court does not feel that Ms. Connelly

should obtain any of the costs associated with resisting the application for a certificate for leave to appeal which was made in

the High Court.

12. Finally a question has arisen concerning the costs of the filing by Ms. Connelly of a respondent’s notice opposing the

Board’s application for leave to appeal to this Court. In that context it is important to emphasise that the respondent’s notice

in the leave to appeal process before this Court does two things. First it sets out the position of the respondent on whether

leave to appeal should be granted. But second and equally importantly, that notice specifies the grounds on which the appeal

will be opposed in the event that leave is given.

13. In the Court’s view the filing of a respondent’s notice in a case where leave to appeal is granted should ordinarily, and in

the absence of exceptional circumstances, form part of the costs of the appeal to be dealt with in the same way as the costs

of the appeal generally. The Court does not see that there are any exceptional circumstances in this case to warrant

departing from that procedure.

14. In summary, therefore, the Court will grant the applicant 75% of the costs of the proceedings in the High Court and the

appeal in this Court (with the costs of the appeal in this Court to include the costs of filing the respondent’s notice) but will

make no order in respect of the costs of the application for a certificate in the High Court.

15. The Court should add that neither of the notice parties suggested that they should obtain costs and no party sought costs

against them. In the circumstances there will be no order as to costs in that regard.