High Court awards plaintiff costs despite losing substantive case due to public interest and general importance of issues.

Neutral Citation Number: [2005] IEHC 79

THE HIGH COURT

[Record No 2004/18593P]

BETWEEN

DOMINIC DUNNE

PLAINTIFF

AND

THE MINISTER FOR THE ENVIRONMENT, HERITAGE, AND LOCAL GOVERNMENT,

IRELAND

THE ATTORNEY GENERAL AND

DUN LAOGHAIRE RATHDOWN COUNTY COUNCIL

DEFENDANTS

Judgment of Miss Justice Laffoy delivered on the 18th day of March, 2005

1. On 7th September, 2004 I delivered a judgment on the substantive issues in this case – whether s. 8 of the National Monuments

(Amendment) Act, 2004 (the Act of 2004) was invalid having regard to the provisions of the Constitution and certain provisions of

European Law. I found against the plaintiff on all the issues raised. An appeal to the Supreme Court by the plaintiff against that

decision is currently pending.

2. This judgment is concerned with the following applications:

(a) an application by the unsuccessful plaintiff for his costs of the proceedings in this court against all of the defendants;

and

(b) an application by the defendants for their costs against the plaintiff, which it was contended should be acceded to on

the basis that the ordinary rule that costs follow the event should be applied.

3. I have had the benefit of written submissions on behalf of the plaintiff and oral submissions on behalf of all of the parties.

4. In reliance on a number of recent authorities, primarily, the judgment of this court (Quirke J.) delivered on 24th January, 2003 in

McEvoy v. Meath County Council [2003] 1 I.R. 208 and the judgment of this court (Kelly J.) delivered on 31st March, 2004 in Sinnott

v. Martin [2004] 1 I.R. 121, counsel for the plaintiff submitted that the exercise of this court’s discretion to depart from the normal

rule that costs follow the event is governed by two principles:

(1) that the plaintiff was acting in the public interest in a matter which involved no private personal advantage; and

(2) that the issues raised by the proceedings are of sufficient general public importance to warrant an order for costs

being made in his favour.

5. McEvoy v. Meath County Council involved a challenge by way of judicial review to the making and adopting of a development plan

for County Meath, the first applicant being an elected member of Kildare County Council and the second applicant being the chairman

of An Taisce (the National Trust for Ireland). The challenge was unsuccessful. In considering the applicants’ application for an order

for costs against the respondent, Quirke J. considered a number of authorities, one of which was a decision of the English High Court

in R. v. Lord Chancellor, ex parte Child Poverty Action Group [1999] 1 W.L.R. 347 which concerned the jurisdiction of the English High

Court to make a pre-emptive costs order. Quirke J., having noted that Dyson J. acknowledged that there was a distinction to be

made between ordinary private law litigation, on the one hand, and what he called “public interest challenges” on the other hand,

quoted the following passage from the judgment of Dyson J. at p. 353 in which he explained his understanding of the concept of a

public interest challenge:

“The essential characteristics of a public law challenge are that it raises public law issues which are of general

importance, where the applicant has no private interest in the outcome of the case. It is obvious that many, indeed most

judicial review challenges, do not fall into the category of public interest challenges so defined. This is because, even if

they do raise issues of general importance, they are cases in which the applicant is seeking to protect some private

interest of his or her own.”

6. Quirke J. found that in the proceedings before him neither of the applicants was seeking to protect some private interest of his

own. They had acted solely by way of furtherance of a valid public interest in the environment and, in particular, in the interest of

those communities affected by the planning considerations applicable to the greater Dublin area. He was also satisfied that the

proceedings raised public law issues of general importance. On that basis he was satisfied that the applicants had brought “a bona

fida public interest challenge”. Quirke J. went on to analyse the course of the proceedings in terms of how issues of fact and law

were dealt with. He found that the proceedings were unnecessarily prolonged because of the vast amount of documentation that had

to be analysed. While he did not expressly blame the respondent for this, it is to be inferred that it was his view that it was the

manner in which the respondent contested the issues which gave rise to that outcome. He also found that the majority of issues of

fact were determined in favour of the applicants. He made an order requiring the respondent to pay the full costs of and associated

with the daily transcript and he awarded the applicants 50% of their costs of and incidental to the proceedings.

7. In Sinnott v. Martin, Kelly J. stated that, in his view, the views expressed by Dyson J. in the passage which I have quoted earlier,

and approved of by Quirke J., were correct. However, he found that in the proceedings before him, with one exception, the parties

before him were seeking to protect their own private interests by participating in the proceedings and that in the circumstances

which had prevailed the exceptional party could not be regarded as in a different category for cost purposes. Moreover, he felt that

the case did not raise public law issues of such importance as would entitle him, as a matter of discretion, to award costs against the

Minister for the Environment.

8. I am satisfied that counsel for the plaintiff have correctly identified the principles established in the recent jurisprudence of this

court in accordance with which the court should exercise its discretion in considering an application for costs by an unsuccessful

plaintiff or applicant in public law litigation, at any rate, against a protagonist which is a public body. I now propose applying those

principles to the instant case.

9. In my view, it cannot be gainsaid that these proceedings have the essential characteristics of a public law challenge as outlined by

Dyson J. The plaintiff is within that rare category of litigants who truly have no private interest in the outcome of the proceedings. He

brought these proceedings and the earlier proceedings in which he was involved, Dunne v. Dun Laoghaire Rathdown County Council

[2003] 1 I.R. 567 (Dunne No. 1), as a private citizen who is concerned about the impact of the construction of the South Eastern

Route Motorway on the archaeological site at Carrickmines Castle. The proceedings undoubtedly raised public law issues which are of

general importance in that the issue at the core of the proceedings is the power of the Oireachtas to make laws facilitating road

development which will or may impact on a national monument.

10. In my judgment on the substantive issues, I have to some extent outlined the course of the proceedings. The proceedings were

initiated on 18th August, 2004. By consent of the parties the plenary hearing commenced on 26th August, 2004 and was heard over

four days. No oral evidence was heard. I think it appropriate to record that all of the parties and their respective legal teams

conducted the proceedings in a manner which ensured that the issues were dealt with in a timely and cost efficient manner.

11. The outcome of the proceedings turned almost entirely on questions of law, all of which were determined in favour of the

defendants. Notwithstanding that, it seems to me that there are special circumstances in this case which warrant a departure from

the general rule contained in order 99, rule 1(4) of the Rules of the Superior Courts, 1986 that the costs of every issue or fact or law

raised upon a claim or counterclaim shall follow the event.

12. In my judgment on the substantive issues, I have outlined the background to the proceedings from the Environmental Impact

Statement of September, 1997 to the coming into force of the Act of 2004 on 18th July, 2004. Of particular significance on the issue

of costs, in my view, is the fact that the plaintiff was successful in obtaining an interlocutory injunction in Dunne No. 1, which

effectively halted road works at Carrickmines Castle without a valid consent under s. 14 of the National Monuments Act, 1930, as

amended. This led to the making on 3rd July, 2003 of the joint consent and the ministerial order which were subsequently successfully

challenged in Mulcreevy v. Minister for Environment, Heritage and Local Government and Dun Laoghaire County Council [2004] 1

I.L.R.M. 419. That successful challenge, in turn, provoked the enactment of a special provision in s. 8 of the Act of 2004 in relation to

the South Eastern Route, which I have concluded was driven by a policy designed to ensure the completion of the motorway without

any input in relation to national monument protection implications from any party external to the first and fourth defendants and their

respective advisors. Against that background, I consider that the issues raised in these proceedings, adopting the words of Dyson J.

in the CPAG case at p. 358, were “truly ones of general public importance”. They were difficult issues of law. It was in the public

interest that they be clarified.

13. I can see no principled, or even rational, basis on which I would award the plaintiff portion only of the costs of the proceedings.

Unlike the situation which arose in the McEvoy case, the plaintiff was not successful on any issue. However, as a matter of principle I

do not consider that the courts discretion as to costs in this type of public law litigation is in any way dependent on one or more of

the issues of fact or law raised being decided in favour of the plaintiff or applicant. Accordingly, there will be an order for costs in

favour of the plaintiff against all the defendants.