Court awards applicant full costs for leave application and preliminary reference, but stays award pending appeal.

Neutral Citation [2015] IEHC 618

THE HIGH COURT

COMMERCIAL

[2014 No. 647 J.R.]

[2014 No. 170 COM]

IN THE MATTER OF SECTION 50 OF THE PLANNING AND DEVELOPMENT ACT 2000, AS AMENDED

BETWEEN

JOHN CALLAGHAN

APPLICANT

AND

AN BORD PLEANÁLA, IRELAND AND THE ATTORNEY GENERAL

RESPONDENTS

AND

ELEMENT POWER IRELAND LIMITED, ELEMENT POWER IRELAND AND NORTH MEATH WINDFARM LIMITED

NOTICE PARTIES

JUDGMENT of Ms. Justice Costello delivered on 12th day of October, 2015.

1. In this case I delivered a judgment on 11th June, 2015, following a combined ‘telescoped’ hearing in relation to the application for

leave to apply for judicial review and the substantive application for judicial review. I refused the applicant leave to apply for judicial

review on all points. On 24th July, 2015, I delivered my second judgment in this matter pursuant to the applicant’s application for a

certificate for leave to appeal in respect of the judgment of 11th June, 2015. Of the three points of law advanced, I certified that the

applicant could appeal on one ground on the basis that he had raised a point of exceptional public importance and that it was

desirable in the public interest that an appeal should be taken in respect of the matter. This judgment is concerned with the costs of

the application for leave to bring judicial review, the costs of the Motion pursuant to s. 3 of the Environment (Miscellaneous

Provisions) Act 2011, the costs of an application for a preliminary reference to the Court of Justice of the European Union pursuant to

Article 267 of the Treaty on the Functioning of the European Union, and the costs of the application for a certificate for leave to

appeal.

2. The applicant seeks an order for his costs. The respondents and the notice parties are likewise seeking their costs against the

applicant.

3. It is common case that the basic law governing the question of costs in civil proceedings is to be found in s. 14(2) of the Courts

(Supplemental Provisions) Act 1961 and O. 99 of the Rules of the Superior Courts, which provide, inter alia, that the normal rule is

that the costs of every proceeding follow the event. It was also accepted that the courts always retain a discretion in relation to

costs. The applicant argued that the proceedings should be characterised as public interest proceedings and that he was entitled to

his costs on that basis notwithstanding the fact that he had been unsuccessful and had failed to obtain the relief sought.

4. The parties all agreed that the leading decision in this area is that of the Supreme Court in Dunne v. Minister for the Environment

[2008] 2 I.R. 775. This was an appeal from the decision of Laffoy J. in the High Court where she held that the exercise of the court’s

discretion to depart from the normal rule that costs follow the event was 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 were of sufficient general public importance to warrant an order for costs

being made in favour of the unsuccessful plaintiff.

The decision was overturned on appeal. Murray C.J. gave the judgment of the Court at paras. 25-27 as follows:-

“[a]s previously indicated, these elements are relevant factors which may be taken into account in the circumstances of

a case as a whole. Because these elements are found to be present it does not necessarily follow that an award of costs

must invariably be made in favour of an unsuccessful plaintiff or applicant. Equally, the absence of those elements does

not, for that reason alone, exclude a court exercising its discretion to award an unsuccessful applicant his or her costs

if, in all the circumstances of the case, the court is satisfied that there are other special circumstances that justify a

departure from the normal rule.

26 The rule of law that costs normally follow the event, that the successful party to proceedings should not have to pay

the costs of those proceedings which should be borne by the unsuccessful party, has an obvious equitable basis. As a

counterpoint to that general rule of law, the court has a discretionary jurisdiction to vary or depart from that rule of law

if, in the special circumstances of a case, the interests of justice require that it should do so. There is no predetermined

category of cases which fall outside the full ambit of that jurisdiction. If there were to be a specific category of cases to

which the general rule of law on costs did not apply that would be a matter for legislation since it is not for the courts to

establish a cohesive code according to which costs would always be imposed on certain successful defendants for the

benefit of certain unsuccessful plaintiffs.

27 Where a court considers that it should exercise a discretion to depart from the normal rule as to costs, it is not

completely at large but must do so on a reasoned basis, indicating the factors which, in the circumstances of the case,

warrant such a departure. It would neither be possible nor desirable to attempt to list or define what all those factors

are. It is invariably a combination of factors which is involved. An issue such as this is decided on a case by case basis

and decided cases indicate the nature of the factors which may be relevant but it is the factors or combination of

factors in the context of the individual case which determine the issue.”

5. In this case the applicant has a private interest in the outcome of the litigation and thus he does not meet Laffoy J.’s first

criterion. Indeed, if he did not, he would lack locus standi to bring an application for leave to seek judicial review pursuant to s. 50 of

the Planning and Development Act 2000, as amended, as he is required to establish that he has substantial interest in the matter in

order to bring such an application. This problem was addressed by Macken J. in Harrington v. An Bord Pleanála [2006] IEHC 223 where

she held:-

“I am satisfied therefore that a person bringing these type of proceedings, under the planning code, who while in law

must have the statutory substantial interest in the outcome of the matter, but who, at the same [time] raises complex

legal issues of general, even perhaps seminal, importance, is not to be precluded from being granted his costs in an

appropriate case…”

6. In Sweetman v An Bord Pleanála [2007] IEHC 361 Clarke J. accepted the conclusion reached by Macken J. in Harrington that the

fact that an applicant may have established a substantial interest in the proceedings did not, of itself, mean that such a party was

debarred from qualifying for an order for costs in his favour where he had been unsuccessful on the basis of having some degree of

private personal interest in the litigation. It follows, as was stated by Murray C.J. in Dunne, that the fact that the applicant has a

personal private interest in the outcome of the litigation, as is the case here, does not debar a court from granting him his costs in

the exercise of the court’s discretion.

7. The onus is on the unsuccessful applicant to satisfy the court why in all the circumstances of the case there are special

circumstances that justify a departure from the normal rule.

8. The applicant argued that the test is whether there is an issue of sufficient general public importance to warrant an order for costs

being made in favour of the applicant. It was submitted that there clearly was such an issue in this case because I granted a

certificate of leave to appeal in respect of one point. I could not have done so without expressly holding that the applicant had raised

a point of exceptional public importance. He argued that this was clearly public interest litigation notwithstanding the existence of his

private interest in the proceedings. Emphasis was placed upon the importance of the core legal point which was public participation in

the planning process of Strategic Infrastructure Development (“SID”). This would impact upon all future applications for SID. This was

important therefore both legally and factually and it was of general public importance in both regards. It was also argued that a

relevant factor to be considered was the scheme of the planning code which clearly ordained that relief by way of judicial review

would normally terminate in the High Court. Given that this was one of the cases which did not terminate in the High Court but raised

an issue of exceptional of public importance, it was appropriate that the applicant should have the benefit of legal assistance to bring

forward such a case. It was also urged that because the applicant had been granted a certificate of leave to appeal that he had not

actually lost. It was submitted that the applicant’s case was not without substance. It was argued that “[h]e has a good arguable

case, which he lost here, but which is a case of substance which deserves to be the subject of an appeal.” 1

9. In written submissions the applicant relied upon certain matters which were not advanced at the hearing of the application for

leave to seek judicial review and on other matters which were rejected by me in my judgment of 11th June, 2015. It seems to me as

a matter of principle that a party cannot rely on matters which did not seek to advance at the actual hearing and which expressly he

chose not to pursue when advancing arguments in an application for costs. This reasoning does not apply to an application for costs

by an unsuccessful party in respect of arguments which were advanced and were rejected. Therefore, I also have to consider

whether or not these additional grounds set out in his written submissions could, in conjunction with those set out above, amount to

special circumstances justifying the departure from the normal rule in relation to costs.

10. He argued that this case involved a challenge to the transposition of the Environmental Impact Assessment Directive into national

law and that An Bord Pleanála (“the Board”) inadequately assessed the proposed development’s ability to meet the State’s 2020

renewal energy targets or whether the proposed development was of strategic economic or social importance to the State or region.

He referred to the parties who potentially would be affected by the development if it were to proceed and to the potential damage to

the environment and to the national monuments and heritage in the region.

11. The respondents and notice parties all opposed the applicant’s application for costs. It was pointed out that the applicant clearly

had a private interest in the outcome of the litigation and therefore he did not satisfy the first requirement identified by Laffoy J. in

Dunne. While this was not fatal, as is clear from the judgment of Murray C.J. in Dunne, it nonetheless was a relevant factor in

assessing the applicant’s argument that the litigation was “public interest litigation”. As Murray C.J. pointed out in Dunne, the court

must analyse the applicant’s own contention that he is acting in the public interest in relation to the litigation when assessing

whether to exercise its discretion in relation to costs. They each submit that the applicant has not established that the case

concerned a point of sufficient general public interest to warrant the departure from the normal rule.

12. It was argued that the Court should have no regard to the granting of the certificate of leave to appeal. The Court had in fact

rejected all of the applicant’s arguments. The certificate of leave to appeal had been granted on the basis that, while the Court did

not accept the arguments of the applicant or that he had established a substantial ground, nonetheless the Court recognised that

another view of the law was possible. The certificate was issued on the basis that the Court may have been wrong in its judgment

and that the issue raised was of exceptional public importance (and that it was in the public interest that there be an appeal on the

point).

13. It seems to me that I should not take into account the granting of the certificate as such in deciding whether or not to award the

applicant the costs of the application of leave to seek judicial review. Indeed in Harrington, Macken J. decided the question of costs

on the leave application and costs on the application for leave to appeal separately without referring at all to her refusal to grant a

certificate when deciding to grant the applicant costs on the basis that he was a public interest litigant. In principle this seems to me

to be correct. Obviously a party might choose not to appeal and the costs of the application for leave to seek judicial review fall to

be decided in isolation from any question of a certificate for leave to appeal. Therefore the Court does not take into account the fact

that a certificate for leave to appeal was granted in this case.

14. However, the legal analysis of the importance of the issue raised is the same albeit for a different purpose: in the first case it was

directed towards the issue as to whether or not a certificate for leave to appeal should be granted, in the second instance, whether

or not there should be a departure from the normal rule in relation to the costs in favour of an unsuccessful applicant. In my opinion

the point raised by the applicant is of a general public importance if it be correct. However by definition every point that is certified

by a court pursuant to the Act of 2000, as amended, will be of general public importance or a court could not otherwise certify leave

to appeal. If that alone were sufficient it would automatically mean that every case in which an applicant failed in his or her

application for a judicial review but obtained a certificate for leave to appeal against such a failure would automatically and without

anything more qualify as a public interest litigant for an order for costs in his or her favour. Murray C.J. pointed out in Dunne that

there is no predetermined category of cases to which the general rule of law and costs did not apply and if there were to be such a

category it would be a matter for legislation.

15. The legislator has already made specific provision in relation to costs in s. 50B of the Act of 2000, as amended, and in s. 3 of the

Act of 2011. It is notable that in enacting s. 50B(2) whereby a court may direct that each party to the proceedings, including any

notice party, should bear its own costs, s.50B(4 ) states:-

“[s]ubsection (2) does not affect the Court’s entitlement to award costs in favour of a party in a matter of exceptional

public importance and where in the special circumstances of the case it is in the interests of justice to do so.”

I conclude therefore that there is no such legislative provision in relation to unsuccessful applicants for judicial review who, having

failed in their application for judicial review are held to have raised a point of exceptional public importance. On the contrary, the

legislator has expressly left in place the court’s discretion in that regard. As this section was enacted subsequent to the decision in

Dunne it is to be presumed that the legislator did not intend to create any such category.

16. The implication of this conclusion is that the applicant, if he is to succeed in his application for costs as a public interest litigant,

must establish a special circumstance or circumstances over and above the fact that he has raised a point of exceptional public

importance such as justified the issuing of a certificate for leave to appeal.

17. In his submissions, the applicant pointed towards the wider public who may be affected by the development if it were carried out.

I accept that these submissions may be relevant to the assessment as to whether or not the case was pursued by the applicant as a

public interest litigant notwithstanding his own considerable personal private interest in the litigation, but they apply only to this

particular development, not to other possible SIDs and in my opinion do not constitute “other special circumstances” that would

justify a departure from the normal rule in relation to costs. The applicant also points to the fact that he raised complex issues of law

in relation to the applicability and transposition of the EIA Directive. Undoubtedly this issue was raised and therefore this supports the

argument that the case was brought as public interest litigation. However in these arguments were rejected by me and I gave no

certificate for leave to appeal in respect of these arguments. I do not accept that arguments based on the EIA Directive constitute

“special circumstances” such as to support the applicant’s application for an award of costs.

18. In reaching these conclusions I am bearing in mind the decision of the Supreme Court in Dunne where at para. 35 Murray C.J.

stated:-

“[a]ccepting that the plaintiff brought the proceedings in the interests of promoting compliance with the law and without

any private interest in the matter, I do not consider that the issues raised in the proceedings were of such special and

general importance as to warrant a departure from the general rule. Undoubtedly, it could be said that issues

concerning subject matters such as the environment or national monuments have an importance in the public mind, but

a further factor for the court is whether the legal issues raised, rather than the subject matter itself, were of special

and general public importance. In this case nothing exceptional was raised in the issues of law which were before the

court so as to warrant a departure from the general rule.”

19. I am also bearing in mind the fact that I am required to analyse the applicant’s assertion that the application is brought on a

public interest basis. I accept that there is an element of public interest in the applicant’s case and that he has the support of others

with different interests such as Mr. Meade and Mr. Allen and that there are persons other than the applicant who are concerned at

the possible detrimental impact of the proposed development. As against this, it is clear that the applicant has a very considerable

personal concern in relation to the matter himself. This is in no way to criticise the motivation of the applicant. However, it does

dilute his claim to be a public interest litigant. While the original requirement that a public interest litigant who sought his costs should

have no private interest in the litigation has been qualified by Harrington and Dunne, it remains a relevant factor for the Court to

assess in the overall exercise of its discretion.

20. On balance and considering all the submissions in the round, I am not satisfied that the applicant has established that there are

sufficient special circumstances in this case that justify a departure from the normal rule that costs follow the event. It follows that

the respondents are entitled to the costs of the leave application, the s. 3 application and the application for a reference to the

CJEU.

21. The applicant argued that the notice party should not be entitled to an order for costs against him on the basis that the notice

parties elected to engage in the litigation and they were not obliged to do so. In Vodafone Ireland Ltd. v. The Commission for

Communication Regulation [2015] IEHC 443 I considered the question of notice party costs in judicial review proceedings. I concurred

with and followed the decision of Clarke J. in Telefonica O2 Ireland Ltd. v. Commission for Communication Regulation [2011] IEHC

380, at para 4.3, where Clarke J. stated:-

“[t]here was not, therefore, in my view anything in either the joining of the notice parties, the position which they

adopted in respect of the issues which arose, or the manner in which they advanced their case at the hearing which

could lead to any view other than that their involvement was justified, necessary and reasonable. If the result of the

“event” was in their favour, then there would be no basis for depriving them of a full order of costs.”

In my opinion these words apply precisely to the role of the notice parties in these proceedings and I see no reason not to award the

notice parties their full costs of the application for leave, the application pursuant to s. 3 and the application for reference to the

CJEU.

22. The applicant argued that if the Court was minded to make an order for costs against him that the cost must not be “prohibitively

expensive”. This argument derived from Article 11(4) of the EIA Directive which provides that Member States should ensure that

relevant members of the public should have access to a court of law and that any such procedure “should be fair, equitable, timely

and not prohibitively expensive”. However in so submitting the applicant was seeking to rely directly upon the provisions of a EIA

Directive. The Directive was transposed into Irish law by s. 50B, as was made clear by Charleton J. in JC Savage Supermarket Ltd. &

Anor v. An Bord Pleanála [2011] IEHC 488. The applicant has not argued that s. 50B represents an incomplete transposition of Article

11. It is important to note that the applicant previously brought an application pursuant to s. 50B of the Act of 2000, as amended,

and McGovern J. determined that the applicant was not entitled to rely upon the provisions of the section. I therefore reject any

argument that the costs ordered above should be other than full costs subject to the normal rules in relation to the taxation of costs.

23. Different considerations entirely apply to the costs of the application for the certificate for leave to appeal. The application lasted

for one day. While the applicant originally drafted six points of law, he ultimately argued for three recast points which he urged were

of exceptional public importance. He was successful in respect of one of those three. Notwithstanding the fact that he was only

partially successful, the costs incurred ought not to be apportioned in this case. There was no appreciable addition to the costs

attributable to the advancement of these arguments that were ultimately rejected. It follows that the applicant is entitled to the

costs of the application for a certificate for leave to appeal against the judgment of 11th June, 2015, to include his written

submissions.

24. He is entitled to them as against the State and the Board on the basis that he succeeded on a point that related to the

constitutional right to fair procedures which includes, in appropriate cases, an implied obligation on an authority such as the Board to

afford an applicant (if he is entitled to such) to fair procedures notwithstanding the provisions of the statutory framework in which it

operates. On the other hand, the first named notice party was obliged by law to engage in the procedure mandated by s. 37A of the

Act of 2000, as amended. It had no power or authority to engage in the assessment of or to facilitate the applicant’s alleged rights to

fair procedures. It would be unjust to award costs against the notice parties in the circumstances.

25. In view of the fact that a certificate of leave to appeal has issued and an appeal is pending, I direct that there be a stay on

these respective awards of costs until the determination of the appeal.

1 Transcript of 5th October, 2015, at p. 16.