Limits on the Protective Costs Order under Section 50B

judgeIf you litigate in court and lose, you will pay, big time. That is the general rule: the loser pays all the legal costs. This is known as the “costs follow the event” rule. There are some exceptions to the rule, and I will not discuss those here, but that is what they are – exceptions – the rule stands firm.

This is especially so in Ireland, unlike other countries which have developed special rules in public interest cases. However, our Supreme Court has expressly refused to lay down any rules (Curtin v Clerk of Dáil Eireann & Ors [2006] IESC 27, Dunne v Minister for the Environment, the Attorney General and Dun Laoghaire-Rathdown County Council [2007] IESC 60), leaving the court that is hearing the matter with maximum flexibility (“discretion”) concerning the awarding of costs. This means that prediction is impossible, and the chance of the ‘costs follow the event rule’ coming into play more probable than not.

And that is a scary thought for any potential litigant: the threat of not only losing your case but being saddled with the costs of your opponent’s lawyers. This is especially the case in environmental litigation, where the applicant is often a voluntary group operating on a shoestring budget, usually collected through community fund-gathering events like cake sales, table quizzes and film shows, and of course the parish collection plate.

This clearly has the effect of frightening off the majority of people and/or communities who wish to challenge the latest institutional rape of their environment and their natural resources.

Many people thought that this situation would approve with the passing of the Aarhus Treaty, more particularly the obligation in Article 9 that the costs involved in judicial review procedures must not be ‘prohibitively expensive.’

Unfortunately, but predictably, the Irish government failed to transpose this obligation into our law. It actually had the gumption to argue that the existing discretion of the court was sufficient to fulfil this obligation. This pathetic argument received the beating it deserved from the European Court of Justice ((Case C-427/07 Commission v Ireland [2009] ECR I-6277).

With its tail between its legs, the government reluctantly introduced Section 50B to the Planning and Development Act which claimed to introduce a “special costs regime” for cases involving decisions on matters covered by the EIA Directive, the IPPC Drective, or the Strategic Environmental Assessment (SEA) Directive (which also has the ‘prohibitively expensive’ clause). This was thereafter amended / refined by the Environment (Miscellaneous Provisions) Act of 2011.

This ‘special regime’ means that in certain cases each side gets to pay their own costs. However, there is still a lot of judicial discretion involved before this actually happens. This in turn means that there is still a great deal of uncertainty and nervousness on the part of community organisations and the like who wish to stop the now seemingly endless acts of environmental terrorism perpetrated by this government and their corporate cronies.

In a previous blog I highlighted two judgments which threw some light on how the High Court approaches this question in terms of Section 50B (McCoy & anor -v- Sillelagh Quarries Limited & ors [2014] IEHC 511; and McCoy & anor vs. Sillelagh Quarries Limited & ors [2014] IEHC 512).

Those two judgments by Baker J. remain very important for their guidance as to when Section 50B applies and the form and content of the application for a protective costs order.

There have been other judgments which have further clarified the nature and extent of this special costs regime.

In JC Savage Supermarket Limited vs. An Bord Pleanála [2011] IEHC 488 Judge Charleton made it clear that Section 50B did not apply to all planning cases taken on review. Section 50B applied only to environmental assessment cases (EIS) or projects involving integrated pollution prevention and control licence and if applicable, each party would pay its own costs. The judge ruled that there was nothing in the obligations of Ireland under European law which provided for a wholesale change on the rules as to judicial discretion in costs in planning cases.

So that is the first important limitation to the application of Section 50B. It does not simply apply to any judicial application challenging a decision of a council (planning authority) or the ABP involving either the granting or the refusal of planning permission. It only involves those judicial reviews of planning applications involving (the lack of) an EIS or involving (the lack of) proper licences.

A further limitation on the operation of Section 50B has recently been held by the High Court in Callaghan vs. An Bord Pleanála & ors [2015] IEHC 235 which was a case involving a challenge by community groups against a decision by the ABP to declare as a “strategic infrastructure” an industrial wind farm consisting of 46 turbines on three clusters of land at Emlagh near Kells, Co. Meath. The designation as a “strategic infrastructure” by the ABP meant that the developers could apply directly to the ABP for planning permission without first applying to the Council. The applicant took this decision by the ABP on review.

In his decision, on the question of costs, Judge McGovern held that Section 50B did not apply to “interlocutory applications brought in these proceedings including applications for discovery”.

The judge said:

“There has been no development consent or no permission to develop granted by the Board. All that had happened is that on 12th September, 2014, the Board made a declaration that the proposed development, if carried out, would fall within s. 37A(2)(a) and (b) or in other words that it would fall within the ambit of “strategic infrastructure”.

“I am satisfied that s. 50B does not apply to these proceedings. The decision which has been challenged does not meet any of the criteria in that section. The decision was simply a determination of the Board under special provisions introduced by the Planning and Development (Strategic Infrastructure) Act 2006 and amounted to no more than a determination by the Board that a proposed development referred to therein, if carried out, would fall within s. 37A(2)(a) and (b) that is to say it was “strategic infrastructure” [Emphasis added]. Nothing the Board has determined had anything to do with EIA. The EIA Directive and the Public Participation Provisions contained therein arise and relate only to the development consent process which is outside the scope of the judicial review. The various bases on which a protective costs order are sought are all designed to ensure that no unnecessary impediment by way of costs is put in the way of parties who seek to challenge decisions to grant development consent. Since this judicial review concerns a preliminary designation of the nature of the proposed development as SID neither the Aarhus Convention nor the Council Directive 2011/92/EU applies to this application. I refuse the application for a protective costs order.”

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So just what is an “interlocutory application”?

To put it simply, they are the skirmishes carried out by lawyers in the motions court before a dispute finally arrives in the trial court. They are often stop-gap measures that one litigant will seek against the other, for example when a question of law must be answered by a superior court before things can go ahead in the trial court. Another common example is where one of the parties to the trial alleges that action needs to be taken immediately to stop the other party from causing irreparable harm to property whilst they wait for the trial date or even whilst the trial is going on.

As you can well imagine, the nature of environmental litigation makes these types of application fairly common, particularly where a community is challenging the granting of planning permission by the ABP and the developer is keen to start building and thus destroy the environment, often irreparably. Some form of urgent relief will need to be sought by way of interlocutory application but the applicant will not enjoy the (already scant) protection offered by Section 50B.

What the judge is suggesting is that because these interlocutory applications do not relate to the need for an EIS or the presence of a required licence, even though this might well be the subject of the main dispute set down for trial, they are not covered by Section 50B.

This is a very restrictive interpretation as it might be argued that the interlocutory applications would not be necessary if the dispute was not before the court in the first place, and therefore all costs and not just trial costs are incurred by the parties in furthering their battle to save their environment. This judgment can also be used by wealthy and unscrupulous litigants to bleed the other party dry by launching a series of these applications.

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This is a serious limitation on the operation of Section 50B. It is also a further disincentive to communities attempting to protect their environment from destructive developers and harmful projects.

About Neil van Dokkum

Neil van Dokkum (B. SocSc; LLB; LLM; PGC Con.Lit) Neil is a law lecturer and has been so since arriving in Ireland from South Africa in 2002. Prior to that Neil worked in a leading firm of solicitors from 1987-1992, before being admitted as an Advocate of the Supreme Court of South Africa (a barrister) in 1992. He published three books in South Africa on employment law and unfair dismissal, as well as being published in numerous national and international peer-reviewed journals. Neil currently specialises in employment law, medical negligence law, family law and child protection law. He dabbles in EU law (procurement and energy). Neil retired from practice in 2002 to take up a full-time lecturing post. He has published three books since then, “Nursing Law for Irish Students (2005); “Evidence” (2007); and “Nursing Law for Students in Ireland” (2011). He is an accredited and practising mediator and is busy writing a book, with Dr Sinead Conneely, on Mediation in Ireland. His current interest is Ireland’s energy policy and its impact on the people and the environment. He is also researching the area of disability as a politico-economic construct. Neil is very happily married to Fiona, and they have two sons, Rory and Ian.
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