Supreme Court rules no costs award against State bodies or AG where they defend statutory duties or interpret EU law.

AN CHÚIRT UACHTARACH

THE SUPREME COURT

S:AP:IE:2021:000091

[2022] IESC 18

O’Donnell CJ

Dunne J

Charleton J

Woulfe J

Hogan J

Between/

AN TAISCE - NATIONAL TRUST FOR IRELAND

Appellant

-AND -

AN BORD PLEANÁLA, THE MINISTER FOR COMMUNICATIONS,

CLIMATE ACTION AND THE ENVIRONMENT, IRELAND AND

THE ATTORNEY GENERAL

Respondents

-AND-

KILKENNY CHEESE LIMITED (FORMERLY JHOK LIMITED)(No.4)

Notice Party

RULING of the COURT as to costs delivered on 4th day of April 2022

1. This is the ruling of the Court in respect of An Taisce’s application for 25% of the costs of the proceedings as against either An Bord Pleanála or the State. This application was contained in a letter dated the 2nd of March 2022 from the applicant’s solicitors. While both the Board and the Attorney General opposed this application, all parties were content that this Court should rule on the issue of costs without the necessity for an oral hearing. This, accordingly, is the ruling of the Court on this issue.

2. On 14th February 2020 this Court delivered a judgment upholding the decision of Humphreys J. who delivered a written judgment on the 20th April 2021 dismissing the application for judicial review: [2021] IEHC 254. In those proceedings the appellant sought to quash a decision of An Bord Pleanála dated the 30th June 2020 to grant planning permission in respect of an application by the developer Notice Party to construct a major cheese factory at Slieverue, Co. Kilkenny. There is no doubt at all but that the appeal raised very important – even fundamental – issues of environmental law regarding the operation in particular of the EIA Directive.

3. Towards the end of his judgment Hogan J. expressed the following provisional views (at paragraphs 159 and 160) regarding costs: “As this judgment is being delivered electronically, it may be convenient if, for the assistance of the parties, I should here express a provisional view on the issue of costs. Although An Taisce has lost its appeal and its challenge to the grant of planning permission in respect of the factory has been dismissed, it has raised important and practical issues regarding the development consent process. In these circumstances, and quite independently of any arguments that may arise in relation to either s. 50B of the 2000 Act or, for that matter, ss. 3 and 4 of the Environment (Miscellaneous Provisions) Act 2011, I consider that it would be appropriate that each side would abide its own costs. (The Attorney General has, in any event, agreed to abide his own costs)

The parties are, of course, free to dispute this provisional view. If, however, any party wishes to contend for a different costs order, they should inform the Supreme Court Office within fourteen days of the delivery of this judgment.”

4. The applicant makes the case in support of its application for 25% costs by saying first that it took these proceedings purely to vindicate “European and national environmental law and to ensure a high standard of environmental protection. It has no personal or financial interest in the outcome and instituted the litigation in the public interest.” Second, it says that the proceedings were in the nature of a test case. Third, it refers to cases such as Kerins v. McGuinness [2017] IEHC 217. In that case, although Ms. Kerins had lost before a Divisional High Court, that Court nonetheless made a costs order in her favour given the novelty of the issues raised in that case concerns the powers and functions of an Oireachtas Committee.

5. It is perhaps worth saying at the outset that one must not overlook the fact that the applicant actually lost the appeal. Subject only to the special provisions as to costs contained in s. 50B of the Planning and Development Act 2000 (as amended) or, for that matter, ss. 3 and 4 of the Environment (Miscellaneous Provisions) Act 2011, the normal rule in those circumstances is that the losing party should pay the costs. In recognition of the importance of the case the Court had already expressed its provisional view that, quite independently of these special statutory rules, there should be no order as to costs.

6. The Court would first respond to the specific points made by An Taisce by observing that it has already been established that simply because an environmental litigant with no personal interest in the matter bona fide litigates a matter of substance in which they have been unsuccessful this is not in itself a reason to make an award of costs in their favour: see Dunne v. Minister for the Environment (No.2) [2007] IESC 60, [2008] 2 IR

775. This is true even if – as in Dunne – the proceedings were in the nature of a test case.

7. Second, it is true that there have been a series of constitutional decisions in which the losing private party has been awarded full or partial costs. This was the basis of the

decision in Kerins and the case-law on this topic, much of which is summarised by the judgment of the Divisional Court in Collins v. Minister for Finance (No.2) [2014] IEHC

79 and more recently by O’Moore J on behalf of the Divisional Court in Heneghan v. Minister for Housing, Planning and Local Government (No.2) [2021] IEHC 816. It is unnecessary to rehearse this case-law in any detail: it is sufficient here to say that this line of case-law all involves State defendants which have responsibility under the Constitution for the enactment of legislation (the validity of which was under challenge) or, in some instances, executive action. An example of the latter is supplied by Horgan v. Ireland [2003] 2 IR 468 where the case concerned the issue of whether the use of Shannon Airport as a re-fueling stop for US aircraft on their way to the theatre of war during the Iraq invasion of March 2003 which the Government had sanctioned amounted to “participation” in war for the purposes of Article 28.3.1 of the Constitution.

8. That is not the case here. No order for costs is sought against the private developer and notice party. The respondent, An Bord Pleanála, is admittedly a State body, having been established by statute. Yet it has no powers or functions other than those conferred by law. It has no autonomous constitutional role and no responsibility for either the national or, for that matter, the EU legislation it is called upon to apply. In these circumstances it would not be appropriate to make a costs order against it.

9. Finally, it is true that the Attorney General was a party. But as the judgment of this Court delivered on 21st December 2021 makes clear (An Taisce v. An Bord Pleanála (No.2) [2021] IESC 83), the Attorney General was joined to this appeal by virtue of his position as guardian of the public interest and not qua his position as legal adviser of the Government. The significance of this for costs purposes is that in the present case - in contrast to the position in the line of authority identified in Collins (No.2) and Heneghan (No. 2) - the Attorney General was not seeking to defend either the validity of the legislation or to stand over particular executive actions as part of his participation in the appeal. The Attorney rather simply sought to assist the Court in pointing to what he contended was the proper interpretation of the EIA Directive. In so doing he was not in the present case representing or advancing the cause of the State.

10. The Court considers that for these reasons there is no basis for making any costs order as against the Attorney General.

11. In conclusion, therefore, it is sufficient for the Court to confirm the provisional order already indicated in the judgment, namely, that each party should abide its own costs. For all the reasons just mentioned, the Court does not consider that the present case falls within the exceptional class of cases where an award of costs (whether full or partial) is made in favour of the unsuccessful party.