Callaghan v Bord Pleanála and Others

• Jurisdiction: Ireland
• Judge: Ms. Justice Costello
• Judgment Date: 12 October 2015
• Neutral Citation: [2015] IEHC 618
• Court: High Court
• Date: 12 October 2015

[2015] IEHC 618

THE HIGH COURT

[No. 647 J.R./2014]

[No. 170 COM/2014]

Callaghan v Bord Pleanala & Ors

COMMERCIAL

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

Practice & Procedures – Planning & Development – Planning and Development Act 2000 – Refusal of leave to apply for judicial review – Costs – s. 14 (2) of the Courts (Supplemental Provisions) Act 1961 – O. 99 of the Rules of Superior Courts

Facts: Following the refusal of the application for leave to apply for judicial review and grant of certificate for leave to appeal on one ground of public importance, the applicant now sought an order for costs concerning those applications including the costs of motion under s. 3 of the Environment (Miscellaneous Provisions) Act 2011 and an application to the Court of Justice of the European Union (CJEU). The respondents and notice parties also sought orders for the costs against the applicant. The applicant contended that he should be entitled to his costs notwithstanding the fact that he had been unsuccessful as the proceedings were of great public importance.

Ms. Justice Costello granted a stay of the present proceedings concerning the award of costs until the determination of the appeal. The Court held that the award of costs was the discretion of the Courts and an unsuccessful applicant would be entitled to his costs only if he was able to show that the case pertained to exceptional public importance with the applicant having no private interest in the outcome of the litigation. The Court in consonance with the Clarke J. in Telefonica O2 Ireland Ltd. v. Commission for Communication Regulation [2011] IEHC 380 held that the notice parties were entitled to costs if the event was in their favour. The Court found that the applicant failed to satisfy the Court that there existed element of public interest in the present proceedings so as to justify a departure from the normal rule and therefore, the respondents were entitled to the costs of the leave application, s. 3 application under the said Act 2011 and an application for reference to CJEU.

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

2 1. In this case I delivered a judgment on 11 ^th 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 24 ^th 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 11 ^th 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.

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

4 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.

5 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:

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

7 (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.

8 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 he 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."

9 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 Pleanala [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…"

10 6. In Sweetman v An Bord Pleanala [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 CJ. 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.

11 7. The onus is on the unsuccessful applicant to satisfy the court why in all the circumstances...