Court refuses exceptional solicitor-client costs order against EirGrid despite procedural concerns over new information.

THE HIGH COURT

[2025] IEHC 710

[Record No. 2024/1407 JR]

BETWEEN

KILSHANE ENERGY LIMITED

APPLICANT

AND

EIRGRID PLC

AND

COMMISSION FOR REGULATION OF UTILITIES

RESPONDENTS

AND

THE MINISTER FOR THE ENVIRONMENT, CLIMATE AND

COMMUNICATIONS

NOTICE PARTY

Ex-Tempore judgment delivered by Mr. Justice Micheál O’Higgins on the 22nd day of July 2025

Introduction

1. This is my ex tempore judgment in the application of Kilshane Energy Limited, whom I will refer to as the applicant or simply Kilshane, for an order for costs on a legal practitioner and client basis, as distinct from the more usual form of order of costs on a party and party basis.

2. The first respondent, EirGrid PLC (“EirGrid”), opposes the application and disputes that it has been guilty of a breach of the duty of candour owed by public bodies to the court, according to judicial review case law. I will come back to that issue presently.

3. EirGrid accepts that costs on a party and party basis are appropriate having regard to the outcome of the proceedings and in light of the findings made by the court in the substantive judgment delivered in March – see Kilshane & Others v. EirGrid Plc and the Commission for Regulation of Utilities [2025] IEHC 174. However, EirGrid contests that any basis has been demonstrated for making a solicitor/client costs order.

4. The backdrop to the matter is that on 10th December 2024 I gave an oral ruling at the

conclusion of the hearing, finding in favour of the applicants (applicants plural at that stage) and indicating that I proposed to quash the decision of the second respondent, the Commission for Regulation of Utilities (“CRU”), refusing to qualify the applicants’ candidate units for the then forthcoming electricity capacity auction. In my ruling, I made a decision to remit the matter back to the CRU to determine the merits afresh, within a particular timeline.

5. As part of that timeline, and on foot of the court’s oral ruling, there was an exchange of memoranda between Kilshane and EirGrid. That exchange occurred in the context of the remitted consideration. The CRU then rendered a new decision on 16th December 2024, which has been provided to the court.

6. I should note in passing that one of the main points made on behalf of Kilshane is that the material contained within EirGrid’s memorandum which was provided for the purpose of the remitted consideration ought to have been placed before the court at the time of the substantive proceedings and the complaint is that that was not done. And the submission goes further: the complaint is that the new material discloses the real reasons as to why the candidate units were not accepted.

7. As Kilshane did have an opportunity to make representations to the CRU following remittal, Kilshane indicates that it does not contend that there is any issue that amounts to a breach of fair procedures within that particular process. However, it is Kilshane’s submission that, by not putting the material in question before the court, EirGrid has failed to abide by its duty of candour. It is principally on that basis that Kilshane urges there should be the somewhat exceptional order of costs being granted on a solicitor/client basis.

8. So, it seems to me that there are two points that Kilshane needs to succeed on: Firstly, in demonstrating to the court that EirGrid has indeed failed to abide by its duty of candour; and secondly, that the circumstances are such that the court should exercise its discretion in favour of granting the order sought and in marking its disapproval of the described conduct.

9. The court has been provided with a booklet of affidavits and materials for this costs application and these include the following. Firstly, four affidavits from the substantive proceedings, that is to say one from Mr. Draffin, the principal deponent on behalf of the applicant, from November of 2024, and three separate affidavits from Mr. McMullan, Mr. Gallery and Mr. Farrell, sworn in the context of the earlier proceedings. In addition, the court has the affidavit of Mr. Draffin filed on 14th April 2025, essentially grounding this application for the enhanced costs order. There is a replying affidavit from Mr. Farrell on behalf of EirGrid, filed on 16th May 2025. Both affidavits refer to exhibited material. And the court has also been provided with helpful written submissions by the parties, which have been supplemented by way of oral submissions before me this morning.

10. In summary, the applicant contends that there has been a clear failure by EirGrid to disclose its actual reasons for having refused to qualify Kilshane’s candidate units, at least up until providing the memorandum in the remittal process on 13th December 2024 - this was some three days after the court's oral ruling.

11. A key focus of the application is what is stated at paragraph 3.1.3 of what I am terming “the EirGrid report”, that is to say the report provided for the purpose of the remitted consideration. That report is to be found at page 110 of the booklet before me. I am going to read this into the record, because it’s the principal material that is said to constitute new reasons for rejection of the candidate units which the applicant urges ought to have been disclosed previously, and were not. The text of paragraph 3.1.3 reads as follows, first of all, it carries the heading “Potential Planning Conditions”. And it reads: “Following consultation periods for both Kildare Meath & East Meath North Dublin projects, a number of potential planning conditions have been proposed by statutory bodies including Kildare County Council and Meath County Council. Subject to grant of planning consent on these projects and review of conditions imposed by ABP...” that’s An Bord Pleanála “... it is expected that extensive engagement will be needed with these statutory bodies (in particular the roads authorities) during the detailed design phase to comply with planning conditions and to secure consent from these authorities prior to commencement of construction.”

12. Now, the Kilshane application focuses in particular on the next paragraph, which I will also read into the record which, if you like, appears as the second paragraph within 3.1.3. It reads as follows: “Currently there is no provision for the connection of this project to the existing 400kV Woodland Substation under CP1194 Woodland Station Redevelopment Project. This would require land acquisition to expand the station, planning consent and construction of a new bay. This in turn would impact the connection for Kildare Meath, East Meath North Dublin and North South Interconnector grid reinforcement projects.

CP1194 is identified as a priority Project by EirGrid/DECC, as is Kildare Meath and East Meath North Dublin, as per Eirgrid’s Grid Delivery Portfolio.”

13. The Applicant submits that, whereas the previously indicated basis for the rejection of the candidate units was difficulties and concerns associated with the building of the cabling connection from its Huntstown site to the Woodland Substation, the reasons that I have just read out, referenced at paragraph 3.1.3 of the report, constitute new reasons that were not previously disclosed and which therefore, says the applicant, amount to a significant failure to comply with the first respondent’s duty of candour to the court.

14. The grounding affidavit of Mr. Draffin, for the applicant, is to be found within the booklet. I’m going to read from portions of that affidavit because it encapsulates the complaint of the applicant. I am going to read from paragraph 8, 9 and 10 of that affidavit, commencing on page 79 of the booklet. At paragraph 8 Mr. Draffin deposes as follows (he is the director of Kilshane Energy Limited).: “Having read Eirgrid’s report...”, that’s the report that was provided for the purposes of the reconsidered application “... I believe that Eirgrid had continued to withhold crucial information with regard to its reasons and motivations for refusing to qualify the candidate units up to 13 December 2024. Eirgrid contended within the report that the connection for the candidate units would negatively impact its own projects. In substance, the report suggests that Eirgrid considers that it is in direct competition with generating companies for existing available transmission infrastructure, alongside being the body tasked with determining qualification for capacity auctions. I am very concerned that Eirgrid is saying in its own report that it had ulterior motives in this case and strategically determined to refuse to qualify Kilshane’s candidate units for the purposes of advantaging and enabling its own projects that is, for a reason other than feasibility under the relevant provisions of the Capacity Market Code.”

15. Now, at paragraph 9, the following is stated by Mr. Draffin: “As a matter of fundamental fairness to the qualification process, the report provided by Eirgrid contained almost entirely new information that was never been put to Kilshane before during the process. This report was provided to the CRU at 23:30 on Friday 13 December 2024, and provided by the CRU to Kilshane at 00:05 on Saturday

14 December 2024 for comment and also then gave rise to further queries of the CRU communicated at 15:14 on Saturday 14 December 2024, all for response on the same date. While I do not criticise the CRU in this regard given that the timeline has been imposed upon it owing to the then imminence of the submission end of the capacity auction and by reason of the proceedings, there is simply no question that the information contained within the report could have been provided by Eirgrid even as early as 16 August 2024 alongside the Provisional Qualification Decision.”

16. Then at paragraph 10 Mr. Draffin continues: “Moreover, the information contained in the report which I believe constitutes Eirgrid’s actual reasons for refusing the application was never disclosed by Eirgrid to this court despite what I am advised is the duty of candour and disclosure that it owes to the court. I am not prepared to speculate how full disclosure of these reasons might have impinged on how Kilshane structured and argued the proceedings or how the court might have determined same. Nonetheless I believe and am advised, however, that at the very least this honourable court should take account of Eirgrid’s failure to disclose reasons when determining the matter of the costs and the appropriate basis of costs of these proceedings.”

17. Mr. Conor Farrell is the deponent for the first respondent in this application, whose affidavit was filed on 16th April 2025. He responds to these points in his replying affidavit, which I think was sworn on the same date. And the relevant excerpts appear at page 144 of the motion booklet, which I will turn to now. I won’t read out the commencement of the affidavit, and indeed I won’t read out all of the relevant excerpts, for reasons of brevity, but I will mention the following and the parties can take it that I’ve read, in particular, all of the affidavit, but most particularly paragraphs 15 until the penultimate paragraph, paragraph 35, which to my mind represent the substantive response of the first respondent to the enhanced costs application. I will just mention some of the points within those paragraphs to give context, but the parties should proceed on the basis that the court has read all of the affidavit. At paragraph

15 Mr. Farrell deposes that: “As noted in the letter from Matheson dated 13 December 2024... the Eirgrid report addressed the new information provided by Kilshane. Further, the Eirgrid Report in section 2 makes it clear that the report was provided in response to the receipt of new information in the memorandum and supporting materials provided by Kilshane on 13 December 2024. In particular, it noted that ‘some of the material is new information or further expands on previously provided information and has been considered in addition to the originally provided material’.”

18. At paragraph 16 he references section 2 of the report, which stated the following: “There are few comparable projects in Ireland or indeed globally of the scale and complexity of the proposed connection method, however Eirgrid has provided observations based on our extensive experience of transmission infrastructure delivery projects in Ireland and in particular using the most recent 400kV grid reinforcement projects; Kildare Meath Grid Upgrade Project and East Meath North Dublin Grid Upgrade Project as references.”

19. At paragraph 17 he avers that: “As appears from the affidavit of Tom Gallery... these two projects were referenced as comparators during the initial process at the CMDRB hearing on 1 October 2024.”

20. Then at paragraph 18 he says: “Eirgrid firmly refutes... Mr. Draffin’s subjective belief that Eirgrid withheld crucial information with regard to its reasons and ‘motivations’ for refusing to qualify the candidate units up to 13 December 2024 and his concern that Eirgrid had 'ulterior motives’ for refusing Kilshane’s candidate units. In this regard, Mr. Draffin appears to rely on his interpretation of Eirgrid’s Report at paragraph 8 of his affidavit... Mr. Draffin does not identify what aspects of the Eirgrid report he is relying on in this regard. In any event, I do not accept Mr. Draffin’s entirely subjective interpretation of the Eirgrid report. I reject the narrative that Mr. Draffin puts forward as assertion of the position as he subjectively considers it. I say that the Eirgrid report was prepared solely and only in order to assist the SEMC in its consideration of the remitted FQD.”

21. While I know by this stage I am quite comfortable with the acronyms, the outer world may not be. FQD stands for Final Qualification Decision. He continues by deposing that: “I say that any nuanced description or analysis on the part of Eirgrid in its report comprise no more than a consideration of the Kilshane’s submission on the remittal, and do not amount to new information, less still information that Mr. Draffin suggests could have been put forward at an earlier date. In this regard I say that any asserted differences are misconceived.”

22. Then at paragraph 19 he deposes: “By way of specific reply to the assertion of Mr. Draffin, and for the avoidance of all doubt, Eirgrid firmly rejects any assertion that it is in direct competition with generation companies for the existing transmission infrastructure. In this regard... Mr. Draffin’s view misunderstands and disregards, or ignores, the statutory obligation of the TSO...”, that’s the system operator, “... in securing the transmission network, which these specific projects serve.”

23. Then at paragraph 21 he deposes: “The existence of the EMND Project...”, that’s the East Meath North Dublin project, “... does nevertheless present a constraint on the feasibility of Kilshane’s project in several respects, including in terms of completion within the applicable timeframe.”

24. I will move down to paragraph 26. And again, I do want to emphasise I am not in any sense ignoring the intervening paragraphs. But at paragraph 26 of Mr. Farrell’s affidavit, he says the following: “However, the updated information provided by the developer on 13 December 2024 included the report by H&MV Engineering dated 12 December 2024... which led to Eirgrid’s identification in its report of further obstacles to the developer’s ability to connect to the system in the timeframe. This included (but was not limited to) issues arising from the proposed route of Kilshane’s grid connection which, for the first time, was revealed to be crossing/conflicting with EMND.” (East Meath North Dublin) “The new information provided by Kilshane in the memorandum, specifically the route map provided by H&MV, obliged Eirgrid to address these new issues and which required Eirgrid to expand upon the points it had previously made, in addition to pointing out the specific issues that would be caused by the proposed route for the grid connection.”

Legal Principles in an application for Solicitor / Client Costs

25. I will now turn to the legal principles which ought to be applied in an application of this nature. It seems to me these are not in significant dispute between the parties. Purely for ease of reference, I will refer to the summary of the relevant principles set out within the applicant’s helpful written submissions at paragraph 19 and onwards. As I say, I don’t understand there to be major dispute between Mr. McBride, Senior Counsel for the applicant, and Mr. Handy, Senior Counsel for the first respondent, in this regard.

26. The parties are agreed that the default order for costs is costs on a party and party basis. This is made clear by the judgment of my colleague, Mr. Justice Simons, in McCool Controls and Engineering Ltd. v. Honeywell Control Systems Ltd. [2019] IEHC 695.

27. Secondly, the parties are agreed that, in determining whether or not to depart from the normal position, Barniville J. (as he then was) summarised the applicable principles from a review of the relevant case law in a case called Trafalgar Developments Ltd. v. Mazepin [2020] IEHC 13, at paragraph 54 of the judgment. That distillation of the principles was cited with approval by the Supreme Court, O’Donnell C.J. in An Bord Banistíochta, Gaelscoil Moshíológ v. The Department of Education [2024] IESC 38.

28. I am going to read from the book of authorities the parties have provided, and in particular paragraph 54 of Judge Barniville’s decision, as it seems to me these are the principles that I ought apply, and I will endeavour to do so. And these principles can be derived from Order 99, rule 10 and from the judgments of the Irish courts discussed in Judge Barniville’s

decision: “(1) The normal position is that where costs are awarded against one party in favour of on [sic] other, those costs will be taxed or adjudicated on the party and party basis.

(2) the court has a discretion to depart from the normal position in the particular circumstances of the case, where the court thinks fit to do so, and to direct that the costs be taxed or adjudicated on the solicitor and client basis.

(3) There has to be a good reason for the court to depart from the normal position and to make an order for costs on the solicitor and client basis (or on the even more severe basis, the solicitor and own client basis).

(4) the court may exercise its discretion to order costs on the solicitor and client basis where it wishes to mark its disapproval of or displeasure at the conduct of the party against which the order for costs is being made.

(5) The conduct in question can include: -

(a) A particularly serious breach of the party’s discovery obligations;

(b) An abuse of process by that party in commencing and maintaining proceedings for an improper purpose or for an ulterior motive, designed to seek a collateral and improper advantage;

(c) The failure to exercise the requisite caution in commencing proceedings making claims of fraud or dishonesty or conspiracy without ensuring there exists clear evidence supporting a prima facie case in relation to such claims;”

29. And then (d), and I think this is the one that the applicant feels best fits the suggested misconduct here: “(d) Any other conduct in relation to the commencement or conduct of the proceedings, or any aspect of the proceedings, which the court considers merits be marked by the court’s displeasure or disapproval, such a particularly serious or blatant breach of a court order, the directions of the court or the Rules of the Superior Courts.”

30. Then, principle number 6 is stated as follows: “In considering whether the conduct of a party is such that the court should exercise its discretion to make an order for costs on the solicitor and client basis, the court should:-

(a) Clearly identify the particular conduct or behaviour of the party which is said to afford the basis for the court exercising its discretion to award costs on the solicitor and client basis;

(b) Carefully examine and consider the explanation (if any) offered by the party for the conduct or behaviour in question;

(c) Carefully consider and examine the consequences (if any) of the conduct or behaviour in question for the other party, whether in terms of delay or costs or any other form of prejudice to that party;

(d) in light of the above, determine whether, in all the circumstances, it would be appropriate and in the interests of justice to award costs on the solicitor and client basis under O. 99, r 10(3).”

31. Finally, principle 7 is stated by Mr. Justice Barniville as follows: “While a failure to comply with the provisions of the Rules of the Superior Courts or of a direction or order of the court will normally merit the award of costs against the party in default, such costs will normally be awarded on the party and party basis. It will generally only be if the breach or failure to comply is of a particularly blatant or serious nature, having serious consequences for the other party, that the court will be justified, in the exercise of its discretion, to award costs on the solicitor and client basis (or, exceptionally, on the solicitor and own client basis).”

32. It seems to me that last paragraph gives important guidance to a court being asked to exercise this exceptional jurisdiction and points up the high threshold that must be attained before such an exceptional order should be made in the interests of justice.

33. Before I move, then, to analyse the evidence, I want to make one other point that I think bears emphasis, and that is that the court agrees with the point summarised at paragraph 13 of the applicant’s written submissions, which to my mind is a key principle of modern day judicial review jurisprudence. That is the contention that by virtue of being a party to judicial review proceedings, a body such as EirGrid, being a public body, is subject to the duty of candour and cooperation which is enhanced by virtue of it being a public body and that, as it is put in the well-known case of R v. Lancashire County Council ex-parte Huddleston [1986] 2 All E.R.

941, the requirement is that a respondent must put “all the cards face upwards on the table” in view of the fact that “the vast majority of the cards will start in their hands.”

34. That dictum has been approved of in this jurisdiction in cases such as the decision of Mr. Justice Humphreys in Shao v. Minister for Justice (No. 2) [2020] IEHC 68, and I think also is referenced in the Supreme Court’s decision in RAS Medical v. Royal College of Surgeons [2019] IESC 4, which was mentioned in dispatches during the course of submissions earlier.

35. In fairness to the respondent’s position, they do not take issue with the importance and certainly the spirit of that dictum, but they contend that evidentially and substantively there has not been a breach of the duty to place the cards face upwards on the table or a breach of any principle of disclosure.

36. The application, it seems to me, comes down to the key question whether the applicant, Kilshane, has demonstrated to the required level of specificity and exactitude, the wrongful conduct that is said to warrant a solicitor/client costs order. The applicant says that the thrust of EirGrid’s objection during the substantive proceedings, and before that during the CMDRB hearing, was the contention that the applicant had failed to demonstrate that it could construct the required 400kV cable connection from the applicant’s Huntstown site in Finglas to the Woodland Substation in Meath within the required T4 timeframe. The Applicant says a new reason entirely is now evident from the report prepared for the remitted consideration which moves away from the feasibility of the cable connection and for the first time lands on the concerns surrounding the need to expand the substation itself, planning issues surrounding such expansion and concerns around the feasibility of constructing a new bay for the substation. Moreover, says the applicant, the report focuses on the impact the candidate units would have for existing EirGrid projects, referred to as the Kildare Meath, East Meath North Dublin, and North South Interconnector Grid Reinforcement Projects.

37. I have considered these materials carefully and the arguments made, and the distinctions sought to be drawn. I have also had an opportunity since I rose to re-read the affidavits. In my view, there is some basis for saying that new reasons are contained within the EirGrid report. In my view as well, there is some basis for saying that there is something of an adjusted focus within the report on the implications of having to construct additional bays and having to expand the substation.

38. It seems to me there is certainly a case to be made, and to a degree the applicant has a point insofar as it complains that the spelt out focus previously concerned difficulties associated with the connection, or the cabling, as distinct from difficulties associated with the expanding of the substation and planning issues surrounding that, and also with the implications for the other projects that EirGrid was dealing with.

39. However, the question I have to ask myself is: Is that enough? In my view, the court has to ask itself the question: does this somewhat changed emphasis or this additional information establish wrongful or a blatant withholding of relevant information? I have borrowed that adjective from principle 7 within Judge Barniville’s list.

40. In my view, the case law makes clear that the court should be slow to make such a finding in the absence of clear cut evidence to this effect, particularly where, as here, the moving party’s case relies on the court construing documentation and, to a degree, drawing inferences and interpreting the motivation of parties and attempting to do all of that without the court conducting an oral hearing or hearing oral evidence on the disputed issues.

41. I want to make clear that I am not making a legal finding or laying down a new requirement that in all applications of this nature, oral evidence will be required, but I am simply making the point that in the present case the non-disclosure, I am finding, has not been proved to the required standard to warrant the court exercising its exceptional jurisdiction in this case.

42. In coming to that view, I am influenced by a range of factors, including the following factors individually and cumulatively. They are as follows:

1. The context whereby the applicant itself, as part of the remitted process, and this is not a criticism, submitted what it accepts was additional information which it was necessary for EirGrid to respond to.

2. EirGrid, at the opening of the report, notes that some of the applicant’s materials for the purpose of the submission were new or further expanded on previously provided information.

3. Though this is not any “get out of jail” card, at the end of the day; the same refusal ground of feasibility was what remained in issue.

4. The existing affidavits from the substantive proceedings were not addressed to this issue of an alleged non-disclosure and, therefore, in my view, there is a risk of over extrapolating from the affidavits or of reading into the affidavits too much, as to what they say or omit to say.

5. Many of the deponents were addressing the various arguments made at the CMDRB hearing, which involved a very different focus to the focus of this application.

6. The EirGrid report was, by necessity, prepared at some speed and was delivered shortly before midnight on 13th December 2024.

7. All parties were under pressure to adhere to the truncated timeline so that the capacity auction could proceed within the short timeframe that was available.

8. The case law, and in particular Mr. Justice Barniville’s distillation of the principles in the Trafalgar case, reference the need for the court to mark its disapproval of the relevant conduct and references “such a particularly serious or blatant breach of a court order, the directions of the court or the Rules of the Superior Courts.”

The principles refer to the need for the moving party to demonstrate that the conduct complained of had defined or particular consequences. In that regard, I am having particular regard to principle 6(c) within Judge Barniville’s list, where he cautions that: “(6) In considering whether the conduct of a party is such that the court should exercise its discretion to make [the order sought], the court should...

(c) Carefully consider and examine the consequences (if any) of the conduct or behaviour in question for the other party, whether in terms of delay or costs or any other form of prejudice to that party.” And in (7) the guidance indicates that: “It will generally only be if the breach or failure to comply is of a particularly blatant or serious nature, having serious consequences for the other party, that the court will be justified [in exercising its discretion in favour of granting such an order].” I am not satisfied that that “consequences” leg of the test has been proven to the required standard in this case.

43. For all those reasons, including an accumulative assessment that takes into account these factors and the earlier matters that I have had regard to, I have come to the conclusion that it would not be appropriate to grant the order sought.

44. However, the parties will have noted what I have said concerning the new material. And I will mention again that it appears to be accepted in the context of the replying affidavit of Mr. Farrell at paragraph 26 that EirGrid identified in its report “further obstacles to the developer’s ability to connect to the system in the timeframe.”

45. In my view, that acknowledgment - properly made, and what I have already said as to the adjusted focus within the report - does have a bearing on whether it was reasonable to bring this application. I propose to take that into account when adjudicating on the costs of this application. But for the time being, I will confine myself to a ruling on the substantive application.

46. For the reasons indicated, I decline to make the order sought.

Ruling on the costs of the costs application

47. In this discrete application, the court is asked to deal with the question of the costs of the solicitor/client costs application. It is urged by Senior Counsel for the successful respondent, that this is a situation in which costs ought to follow the event. Reliance is placed upon the letter from Matheson Solicitors dated 15th May 2025 in which it can be fairly said Matheson set out the position with clarity and, if you like, looked down the periscope at what was to happen in the event of the application proceeding but ultimately coming up short and being refused. It was indicated that, were the applicant to pursue the application for costs on a legal practitioner and client basis and be unsuccessful, EirGrid would apply for the costs associated with defending the application.

48. So, based upon these matters, the successful respondent seeks its costs of the motion and says that costs should follow from the normal working of the relevant provisions of the Legal Services Regulation Act 2015.

49. First of all, it seems to me there was a clear event in this case which costs should ordinarily follow, that is to say there was a clear-cut decision by the court to refuse the application. In that sense, the first respondent has carried the day.

50. The second thing that I have to decide is whether there is a basis for departing from the normal rule that costs ought follow the identified event. If so, should such basis warrant a full upending of the normal position of awarding costs to the successful party, or even go as far as awarding the costs to the unsuccessful party?

51. In my view, the case law is clear on costs up to and including Mr. Justice Murray’s

decision for the Supreme Court in Little v. The Chief Appeals Officer [2024] IESC 53, which I have had occasion to consider in detail in recent costs rulings.

52. It is appropriate that I bear in mind what I have already said in the costs ruling, in particular, that there was a certain degree of justification for the applicant’s concerns as to there being new information contained within the EirGrid report and also as to an acceptance on affidavit from EirGrid that in the report EirGrid identified what it refers to as “further obstacles to the developer’s ability to connect to the system in the timeframe”.

53. In fairness, it should be pointed out that that reference at paragraph 26 of Mr. Farrell’s affidavit was made in the context of the deponent having previously pointed out that the EirGrid report came after new materials had been put into the mix from the applicant. So, it was not a situation of EirGrid, for the first time, sotto voce, as it were, putting into play new information; rather, it was responding to the applicant’s fresh application in the context of a new consideration altogether in the remitted consideration.

54. Nonetheless, having regard to what I have already said in my ruling, which I won’t reprise, it does seem to me that there was a basis for the applicant’s concerns as to an adjusted focus and, plainly, new matters contained within the report.

55. My substantive finding was that the costs application came up short in demonstrating that all these matters amounted, as it were, to an actionable non-disclosure, sufficient to warrant the exceptional costs order that was sought. But far from having determined that this was a wholly baseless application, devoid of any merit, the court made the remarks that were made. While this was undoubtedly an application that came up short, I did have regard to certain procedural matters and the necessity for the court to err on the side of caution out of fair procedures to all concerned.

56. It seems to me that, in keeping with the court’s ruling, there is a basis here for departing from the normal rule that costs ought to follow the event as to the outcome of the motion. However, I am not persuaded that a sufficient basis has been established for departing from the normal rule and travelling the additional nine yards of actually awarding the costs to the unsuccessful party.

57. It seems to me that the justice of the case would be met, and further good relations between the parties assisted, by the court making no further order. I don’t intend that additional salt would be poured on to any wounds. That is not the primary matter I am having regard to, but it seems to me that in an overall consideration of the issue, the justice of the case would be met by making no order on the motion. And that is the order that I propose to make.

Signed: Micheál O’Higgins

Appearances: For Kilshane: Anthony McBride SC and Cillian Bracken BL instructed by Dermot McNamara & Co. Solicitors. For EirGrid: Niall Handy SC and Sonja O’Connor BL instructed by Matheson LLP.