Court of Appeal corrects mischaracterization of trial judge's comments on Aarhus Convention and adjusts costs award.

THE COURT OF APPEAL

APPROVED

NO REDACTIONS NEEDED

Record Number: 2024/167

Neutral Citation Number [2025] IECA 81

High Court Record Number: 2008/7621P

Butler J. Hyland J. Collins J.

BETWEEN/

HARRY MCHUGH

APPELLANT/ PLAINTIFF

- AND -

MINISTER FOR THE ENVIROMENT, HERITAGE AND LOCAL

GOVERNMENT, IRELAND AND THE ATTORNEY GENERAL

RESPONDENTS/ DEFENDANTS

JUDGMENT of the Court delivered on the 7 day of April 2025 by Ms. Justice Hyland

1. On 11 March 2025 I delivered a judgment whereby I allowed the appellant’s appeal against the decision of the High Court to strike out the within proceedings under Order 19, Rule 28 of the RSC and/or pursuant to the inherent jurisdiction of the court, while upholding that part of the decision striking out the appellant’s claim that his lands had been unlawfully compulsorily acquired. An indicative costs order was identified, subject to any submissions that the parties might wish to make.

2. At paras. 45 to 50 of the judgment, I made certain observations in respect of the costs order made in the High Court, and the manner in which it came to be made. At para. 45, I recited that the appellant had informed this court that the trial judge said he was not familiar with the Aarhus Convention in the context of an application by the appellant under that Convention, and had made a costs order on the basis that it would be a matter for the Court of Appeal to rectify it if he was wrong to do so. That account of the hearing was not contradicted by counsel for the respondents.

3. Although reference was made by counsel for the respondents to a transcript of the costs hearing before the trial judge, and it was stated that the transcript would be provided to this court, through inadvertence, no copy of that transcript was provided. In those circumstances, in delivering judgment of 11 March 2025, I proceeded on the basis that the position was as outlined by the appellant.

4. However, after the judgment was delivered, the solicitors for the respondents wrote to the Court of Appeal office enquiring whether the transcript had been provided to the court and, on hearing that it had not, furnished a copy of the transcript. On reading the transcript it became apparent that the account of events given by the appellant, and not disputed by the respondents, was incorrect. What Mr. Justice Nolan had in fact said (in the context of an application by the appellant to resist a costs order, and a separate application by the appellant for a protective costs order) was that he was not sure what the procedure was in relation to a protective costs order under the Aarhus Convention, which is obviously quite different to being unaware of the Aarhus Convention itself. It is both regrettable that this error occurred, and important that it be corrected by way of this judgment. Had the transcript been provided, this mischaracterisation would not have occurred. In any case, the correct position is now recorded in this judgment.

5. I might add that the basic point made at paras. 44 to 50 of the judgment of 11 March 2025 remains i.e. that counsel for the State are obliged to advise the trial judge as to the law, in this case the potential applicability of the Aarhus Convention in respect of the respondent’s application for costs.

6. The only other matter that requires to be dealt with is costs. In the judgment of 11 March, I proposed that that the appellant be entitled to 80% of his expenses of defending the motion in the High Court and of bringing this appeal, in circumstances where he was not represented. The appellant submitted both in writing, and orally at a hearing on 28 March 2025, that, because he had had solicitors on record from the date of the issuance of the motion on 3 March 2023 until 13 December 2023, when his solicitors came off record, he should obtain an order for 80% of his costs during that period.

7. Normally that would be the appropriate order but there is one unsatisfactory aspect of his representation during that time period. The three affidavits filed by the appellant between

3 March and 13 December i.e. the affidavit of 24 March 2023, the affidavit of 16 June 2023 and the affidavit of 21 September 2023, were drafted by the appellant himself, apparently due to the unavailability of his solicitor and counsel during that period, although it appears that his solicitor and various counsel were retained to deal with various appearances before the court in respect of adjournments, mediation and related matters.

8. I am quite satisfied his legal team will not bill for work they did not carry out, and if there is any dispute in this respect, the costs adjudication process will ensure that costs are only recoverable for work vouched in the usual way. It is nevertheless undesirable that a solicitor should be on record for a litigant but provide only a partial service in relation to that litigation. Here, the affidavits were drafted by the appellant without the involvement of solicitors and counsel, with all the negative consequences that entails for himself, for the opposing party and for the court, in circumstances where he had a legal team on record. To mark this court’s concerns about the approach on the part of the appellant and his legal team, it is proposed to make an order granting the appellant 50% of his costs from 3 March to 13 December 2023, limited to such costs as can be vouched by his solicitor. For the period after

13 December 2023 up to the date of this order, the appellant is entitled 80% of his expenses in the High Court and in this court.

9. As this judgment is being delivered electronically, Butler and Collins, JJ. have authorised me to say that they agree with it.