An Taisce The National Trust for Ireland v Aquaculture Licences Appeals Board and Others
| Jurisdiction | Ireland |
| Judge | Mr. Justice Garrett Simons |
| Judgment Date | 13 February 2024 |
| Neutral Citation | [2024] IEHC 60 |
| Court | High Court |
| Docket Number | 2022 365 JR |
[2024] IEHC 60
2022 365 JR
THE HIGH COURT
JUDICIAL REVIEW
James Devlin SC and Alan Doyle for the applicant instructed by Fieldfisher Ireland LLP
Fintan Valentine SC and Tim O'Sullivan for the first respondent instructed by Philip Lee LLP
Colm Ó hOisín SC and Sean Aherne for the second to fourth respondents instructed by the Chief State Solicitor
Damien Keaney for six of the notice parties instructed by William Fry LLP
JUDGMENT of Mr. Justice Garrett Simons delivered on 13 February 2024
The principal issue addressed in this judgment is whether an applicant for judicial review is entitled to defer the institution of proceedings pending their obtaining assurances in respect of costs protection. The term “ costs protection” is used here as a shorthand to describe the special costs regime applicable to certain types of environmental litigation, whereby an unsuccessful applicant is, generally, shielded from having to pay the winning side's legal costs. The special costs regime is prescribed, primarily, under Section 50B of the Planning and Development Act 2000 and Part 2 of the Environment (Miscellaneous Provisions) Act 2011. These provisions give effect to the principle that the legal costs of the review procedure are “ not prohibitively expensive”.
The applicant herein, An Taisce, held off instituting these judicial review proceedings until such time as it had obtained a judgment from the High Court in satellite litigation confirming that any application for a pre-emptive costs order would itself benefit from costs protection. By the time An Taisce ultimately came to institute these proceedings, the three month time-limit prescribed for judicial review proceedings had long since expired. The question to be addressed by the court is whether an extension of time should be allowed.
To resolve this question, it will be necessary, first, to rule upon a preliminary issue, namely, whether the proceedings are subject to the statutory judicial review procedure prescribed under Section 73 of the Fisheries (Amendment) Act 1997 (as opposed to conventional judicial review under Order 84 of the Rules of the Superior Courts).
These proceedings relate to a number of decisions on applications for aquaculture licences. The statutory scheme is such that the decision on a licence application is made, at first instance, by the Minister for Agriculture, Food and the Marine (“ the Minister”). Thereafter, there is a statutory right of appeal to the Aquaculture Licences Appeals Board (“ Appeals Board”).
The licence applications in the present case all relate to sites within Wexford Harbour. In some instances, the same entity had submitted more than one licence application to the Minister. Where this had occurred, the Minister, for the purposes of notifying his decisions, grouped together the individual licence applications. The consequence of this is that the number of decisions issued is slightly less than the number of individual licence applications submitted. The decisions on the licence applications issued on two dates in September 2019.
It seems that each of the licence applications had triggered the requirement for an appropriate assessment for the purposes of the Habitats Directive (Directive 92/43/EEC). The Minister arranged for a single appropriate assessment report to be prepared to assist him in deciding all the licence applications.
An Taisce wished to challenge, by way of an appeal, the Minister's decisions on the licence applications. To this end, An Taisce submitted an omnibus appeal in relation to the multiple decisions. Importantly, the appeal was accompanied by the fee appropriate to a single appeal only. An Taisce, in a legal submission appended to the appeal document, sought to justify this approach by reference to Section 42 of the Fisheries (Amendment) Act 1997. This section confers a discretion upon the Appeals Board to treat two or more appeals as a single appeal.
By letter dated 26 November 2019, the Appeals Board wrote to An Taisce declaring the appeal to be invalid. The stated reason was that the fee was inadequate. Rather than allocate the fee and appeal to any single licence application, the Appeals Board rejected the entire appeal as invalid.
An Taisce instituted a first set of judicial review proceedings in December 2019 (“ the first judicial review proceedings”). The first judicial review proceedings sought to challenge both (i) the Minister's first instance decisions on the licence applications, and (ii) the Appeals Board's decision to reject An Taisce's appeal as invalid. The first judicial review proceedings had been instituted by way of conventional judicial review (rather than statutory judicial review under Section 73 of the Fisheries (Amendment) Act 1997).
The first judicial review proceedings had been opened for the purpose of stopping the clock running on 11 December 2019. Thereafter, those proceedings had been adjourned to the Judicial Review List on 20 January 2020. In the interim, the solicitors acting on behalf of the Minister wrote to An Taisce to object that those proceedings should have been taken by way of statutory judicial review. This would have entailed the institution of those proceedings by way of an originating notice of motion (rather than an ex parte application for leave).
As of January 2020, there might still have been time for An Taisce to correct any procedural misstep in this regard, at least insofar as the challenge to the Appeals Board's decision was concerned. It will be recalled that the decision rejecting the appeal as invalid is dated 26 November 2019. On either version of the judicial review procedure, An Taisce had three months within which to institute proceedings challenging the Appeals Board's decision. An Taisce could, in principle, have mended its hand by pursuing the application for leave to apply for judicial review on notice. See, by analogy, Dunmanus Bay Mussels Ltd v. Aquaculture Licences Appeals Board [2013] IEHC 214, [2014] 1 I.R. 403.
The first judicial review proceedings came before the High Court (Meenan J.) on 20 January 2020. On that date, the court directed that the application for leave be heard on notice. Thereafter, An Taisce resolved to discontinue the first judicial review proceedings. It has since been explained on affidavit that those proceedings had been issued “ in haste” and without fully understanding the potential costs risk. It seems that An Taisce became concerned that the mere service of the first judicial review proceedings on all of the respondents and the mandatory notice parties, i.e. all of the licence applicants, would have exposed An Taisce to a potential liability for those parties' legal costs.
An Taisce then resolved to institute a fresh set of judicial review proceedings which would be confined to the Appeals Board's decision to reject the appeal as invalid. An Taisce continued to have a concern in relation to its potential exposure to a liability to have to pay the legal costs of the parties in any judicial review proceedings. In an attempt to avoid this potential exposure, An Taisce settled upon the following strategy.
An Taisce instituted proceedings against the Minister for Agriculture, Food and the Marine; Ireland; and the Attorney General (“ the State Parties”). This second set of proceedings will be referred to in this judgment as “ the indemnity proceedings”. The indemnity proceedings were instituted on 25 February 2020, i.e. within three months of the Appeals Board's decision to reject the appeal as invalid. Crucially, neither the Appeals Board (the relevant decision-maker), nor the licence applicants (the parties who would be directly affected by any order setting aside the rejection of the appeal), were joined as parties to the indemnity proceedings.
The indemnity proceedings were instituted by way of an originating notice of motion, purportedly issued pursuant to Order 84B of the Rules of the Superior Courts. In essence, the indemnity proceedings sought, first, a pre-emptive costs order to the effect that the intended judicial review proceedings attracted costs protection, and, in the alternative, a court direction to the effect that the Irish State must indemnify An Taisce in respect of any costs which might be ordered against it in the context of the intended judicial review proceedings. Notwithstanding that the pre-emptive costs order was, purportedly, sought pursuant to Section 7 of the Environment (Miscellaneous Provisions) Act 2011, the mandatory parties to the intended judicial review proceedings had not been joined to the indemnity proceedings as required under subsection 7(5).
The rationale for this approach—as set out in the grounding affidavit of the Chair of An Taisce and in the written legal submissions—had been that the Irish State has (supposedly) failed properly to transpose the requirements of EU environmental law in respect of legal costs. It was said that An Taisce could not begin its intended judicial review proceedings without exposing itself to the risk of costs, and that it could not even bring an application for a pre-emptive costs order without exposing itself to having to pay the costs of that application if unsuccessful. It was further said that An Taisce had felt itself constrained, before bringing an application seeking a pre-emptive costs order on...
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