High Court awards full costs to successful applicant despite advancing unnecessary grounds in planning certiorari case.

THE HIGH COURT PLANNING & ENVIRONMENT [2025] IEHC 607 Record No: 2022/898 JR In the matter of Section 50, 50A and 50B of the Planning and Development Act 2000 Between

PALATINE DAC Applicant and AN COIMISIÚN PLEANÁLA, IRELAND AND THE ATTORNEY GENERAL

Respondents and MOUNT WAY OFFICES LIMITED Notice Party

Ruling on costs of Ms. Justice Emily Farrell delivered the 5th November 2025

1. The Applicant has succeeded in obtaining an order of certiorari in respect of the decision of An Bord Pleanála, which has since been replaced by An Coimisiún Pleanála. The Applicant advanced seven core grounds, and leave was granted on each of those grounds. It proceeded with five core grounds at the substantive application, core Grounds 6 and 7 having been modularised. It is accepted that no order should be made against the State Respondents, who were necessary parties by reason of the inclusion of Core Grounds 6 and 7.

2. On 19th September 2025 I delivered judgment, and found that the Board had failed to provide reasons as to why it considered that the Inspector was incorrect in concluding that the Developer’s methodology was insufficient to enable the impacts in terms of daylight/sunlight to be assessed. The Board had decided to grant permission, having declined to follow the recommendation of its Inspector. None of the grounds advanced by the Applicant were dismissed, but rather I concluded that it was not necessary to determine the remaining issues in the proceedings having regard to the ground on which the Applicant succeeded.

3. The Applicant seeks an order for costs as against the Commission, such costs to be adjudicated in default of agreement. The Applicant relies on the usual rule, that costs follow the event, and submits that no findings were made against it on any grounds. It was submitted this distinguishes the instant case from the facts arising in ESB v. Good [2025] IESC 40, in which case the Supreme Court declined to grant costs in respect of issue on which the applicant had failed - ‘the most significant and substantial issue in the case’.

4. Whilst it can be said that some costs could have been saved had the Applicant not advanced, or not pursed, grounds which were ultimately not determined, it can also be said that the vast proportion of the costs incurred in a case which succeeded on a narrow point could have been saved had an unsuccessful respondent faced up to its error and conceded that ground at an early point.

5. The Commission submits that the appropriate order is for costs (to include reserved costs and costs of the written submissions) to be limited to the costs which would have been incurred had the Applicant confined their proceedings to the issue at Core Ground 4, on which it prevailed.

6. The awarding of costs is a matter for the discretion of the Court, subject to sections 168 and 169, LSRA 2015, and where applicable Order 103 Rule 39(1) RSC.

7. Order 103 Rule 39(1) provides for three situations – where the applicant is “unsuccessful at the substantive stage”, is “wholly successful at the substantive stage” and where the applicant is “partly successful at the substantive stage.” The Commission submits that the appropriate order is one under Order 103 Rule 39 (1)(c) and argues that the Applicant was “partly successful” rather than “wholly successful” in the proceedings.

8. The substantive relief sought by the Applicant was an order of certiorari – whilst a number of grounds were advanced on which the Applicant contended it was entitled to that Order, I found that it was necessary only to determine one such ground in order to grant the relief sought.

9. In Watchhouse Cross Shopping Centre Ltd & Ors v. An Comisiún Pleanála [2025] IEHC

520 and Ventaway Ltd v. An Comisiún Pleanála [2025] IEHC 406 the Court determined a number of grounds against the applicant. That is very different to the situation where, as in this case, the Applicant succeeded on the sole ground which the Court considered necessary to determine in order to decide the proceedings. This is not to say that it was the only necessary or appropriate ground advanced by the Applicant, or that the Applicant was unreasonable in pursuing other grounds. As Counsel for the Applicant submitted, it was open to the Commission to have conceded the ground which succeeded, but it opted, as was its right, to defend each of the grounds on which the Applicant proceeded. No application was made by any of the parties for any other core grounds to be modularised, with a view to saving court time or minimising the costs incurred by the parties.

10. In ESB v. Good, O’Donnell C.J. stated that:

“Difficult questions may well arise for resolution in the future around how the Court should proceed to ‘split’ costs in cases in which a party has succeeded in obtaining some relief, but has lost some ‘issues’ in the course of so doing”.

11. He stated that “That exercise, when it falls to be addressed, will have to reflect the reality that a winning party often loses on some issues, and that it seems unlikely that the Oireachtas intended that once this occurs, the Court should be propelled into the process of interrogating a ‘balance sheet’ of ‘issues’ on which each side has won or lost.”

12. Referring to the judgment of Leggatt J. in Iraqi Civilians v. Ministry for Defence [2018] EWHC690 (QB), [2018] 2 Costs LR 213 O’Donnell C.J. held that “The real question, he said, is whether there are ‘any big issues which have occupied a substantial amount of time and cost and were important in the proceedings on which the overall winner has lost’.”

13. I regard that as the type of situation which is covered by Order 103 Rule 39(1)(c), which is relied upon by the Commission. Sub-rule (1)(a) refers to a case where a party who has the benefit of a costs protection order is “unsuccessful” at the substantive stage, sub-rule (1)(b)

applies where such a party “is wholly successful” and sub-rule (1)(c) applies where such a party is “partly successful”, as I have already noted. Order 103 Rule 39 is expressly stated to be subject to sections 168 and 169 of the LSRA 2015.

14. In the circumstances, I do not consider it necessary to decide whether Order 103 Rule 39 applies retrospectively to proceedings instituted prior to the coming into operation of S.I.

246 of 2025, Rules of the Superior Courts (Planning & Environment) 2025, or whether it applies in a case, such as this, where the parties agreed that costs protection applied and no order to that effect was made by the Court.

15. I note that Regulation 2 of the S.I. provides that “These Rules shall apply in proceedings commenced both before and from the date on which these Rules come into operation.”

Judgment was reserved prior to the coming into operation of Order 103 RSC on 18th June 2025. Therefore, it was not possible for the parties to alter the manner in which they conducted the proceedings to take account of the provisions of Order 103. That is a factor on which I consider it would be appropriate to place weight if it were necessary to decide whether to depart from sub-rule (1)(c), on which the Commission relies.

16. Section 169 (1) of the LSRA 2015 provides that the costs generally follow the event. It provides:

“A party who is entirely successful in civil proceedings is entitled to an award of costs against a party who is not successful in those proceedings, unless the court orders otherwise, having regard to the particular nature and circumstances of the case, and the conduct of the proceedings by the parties, including—

(a) conduct before and during the proceedings,

(b) whether it was reasonable for a party to raise, pursue or contest one or more issues in the proceedings, …”

17. I do not consider that section 169(1), which refers to “A party who is entirely successful in civil proceedings” and “a party who is not successful in those proceedings”, is consistent with an interpretation that a party is entirely or wholly successful only if it succeeds on every point advanced or pursued, rather than every point determined by the Court. No issue or core ground was determined in favour of the Respondent in this case, unlike in ESB v. Good, Watchhouse and Ventaway. While the Order in Watchhouse was handed in to the Court, it was confirmed that the terms of the Order had been agreed between the parties.

18. I consider that the Applicant was wholly successful in its application for certiorari, despite the fact that I found it necessary only to determine the issue raised in Core Ground 4.

19. Order 103 Rule 39 and sections 168 and 169 of the 2015 Act operate to incentivise, rather than disincentivise efficiencies in the conduct of proceedings. Applicants may effectively be penalised in costs for running points which they lose, despite obtaining the relief sought.

Respondents can minimise their exposure to costs by conceding proceedings on a particular issue or issues, or in appropriate cases by seeking modularisation of proceedings. Provision is made for a reduced order for costs in respect of an applicant who succeeds in part and fails in part.

20. The default position for an applicant who was “wholly successful” is that the costs of the proceedings should be awarded to that applicant, although section 169 requires the Court to consider the nature and circumstances of the case and the conduct of the parties. Therefore, it is open to the Court to take the view, in a particular case, that the manner in which the case had been advanced by a successful applicant, in particular by relying on excessive grounds, would justify departure from the usual rule that the costs follow the event.

21. The Court is not required to determine every issue raised in proceedings in order to decide whether the costs which should be awarded to a successful applicant should be reduced to reflect the fact that a greater number of issues had been advanced than the applicant needed to succeed on to obtain the relief sought. That would not be an efficient use of court time or resources. The Superior Courts have repeatedly declined to determine unnecessary issues

with a view to determining the question of costs – in particular, where proceedings become moot.

22. In all the circumstances, having considered sections 168 and 169 of the 2015 Act, and Order

103 Rule 39, I do not consider that there should be an apportionment or reduction in the costs awarded to reflect the fact that the Court did not consider it necessary to determine all of the issues which were advanced by the Applicant at the substantive hearing in order to grant an order of certiorari of the impugned decision. I am satisfied that the appropriate order for costs in the instant case is for the Applicant to be awarded the costs, including reserved costs, and the costs of the written submissions, as against the Commission, such costs to be adjudicated in default of agreement. I shall make that Order.

Emily Farrell