Cork County Council v The Minister for Housing, Local Government and Heritage

JurisdictionIreland
JudgeHumphreys J.
Judgment Date15 August 2022
Neutral Citation[2022] IEHC 473
CourtHigh Court
Docket Number[2021 No. 631 JR]
Between
Cork County Council
Applicant
and
The Minister for Housing, Local Government and Heritage
Respondent

and

Cork City Council
Notice Party

[2022] IEHC 473

[2021 No. 631 JR]

THE HIGH COURT

JUDICIAL REVIEW

Costs – Development – Legal Services Regulation Act 2015 – Applicant seeking costs – Whether the applicant was entirely successful

Facts: The High Court (Humphreys J), in Cork County Council v Minister for Housing, Local Government and Heritage (I) (No. 1) [2021] IEHC 683, quashed a direction by the respondent, the Minister for Housing, Local Government and Heritage, under s. 31 of the Planning and Development Act 2000 to remove Variation No. 2 to the Cork County Development Plan. In Cork County Council v Minister for Housing, Local Government and Heritage (I) (No. 2) [2021] IEHC 708, Humphreys J granted a limited stay on that order. In Cork County Council v Minister for Housing, Local Government and Heritage (II) (No. 1) [2021] IEHC 617, Hyland J discharged a stay (granted at leave stage) on a requirement to the applicant, Cork County Council, made by the Minister under s. 9(7) of the 2000 Act to coordinate its Development Plan with the notice party, Cork City Council. In Cork County Council v Minister for Housing, Local Government and Heritage (II) (No. 2) [2022] IEHC 281, Humphreys J dealt with the substantive stage of that challenge and quashed the requirement under s. 9(7) of the 2000 Act. Humphreys J then dealt with the costs of that latter challenge.

Held by Humphreys J that: (i) the applicant was not “entirely successful” because it did not prevail on all issues and therefore s. 169 of the Legal Services Regulation Act 2015 did not apply; (ii) where the winner is partly successful, the court then considers the matter under the discretion conferred by s. 168 and that did apply; (iii) some relatively modest costs were incurred unnecessarily by virtue of the sub-issues on which the applicant lost, but those additional costs did not reach the threshold of being significant for the purposes of justifying a cost discount where the case would have run into a second day anyway; (iv) where a case would have run for two days or more and there is no particular pleading, affidavit or interlocutory hearing that unnecessarily absorbed costs, then it is both inappropriate and counter-productive to incentivise losers into making pointless and academic applications for costs to be shaved back; (v) since the additional effort of dealing with the winner’s losing points was not so material as to give rise to a significant increase in costs, then the question of a discount or a Veolia costs order (Veolia Water UK Plc. v Fingal County Council (No. 1) [2006] IEHC 137) did not arise; (vi) special costs rules did not apply and the only one that could have been relevant was that in relation to environmental litigation, but the issues under the SEA directive did not have to be decided.

Humphreys J awarded the council the costs of the proceedings against the Minister including reserved costs and the costs of written legal submissions, and allowing for the costs of two counsel for the leave application. Humphreys J ordered that the applicant would also have the costs of the costs issue as against the Minister, including any reserved costs and the costs of written legal submissions. For the avoidance of doubt, Humphreys J held that that the Minister could set off against such costs the costs already awarded in relation to the stay.

Costs awarded to applicant.

(II) (No. 3)

JUDGMENT of Humphreys J. delivered on Monday the 15th day of August, 2022

1

This is the fifth judgment in two related sets of proceedings between the parties. In Cork County Council v. Minister for Housing, Local Government and Heritage (I) (No. 1) [2021] IEHC 683, ( [2021] 11 JIC 0502 Unreported, High Court, 5th November, 2021), I quashed a direction by the Minister under s. 31 of the Planning and Development Act 2000 to remove Variation No. 2 to the Cork County Development Plan.

2

In Cork County Council v. Minister for Housing, Local Government and Heritage (I) (No. 2) [2021] IEHC 708, ( [2021] 11 JIC 1810 Unreported, High Court, 18th November, 2021), I granted a limited stay on that order.

3

In Cork County Council v. Minister for Housing, Local Government and Heritage (II) (No. 1) [2021] IEHC 617, ( [2021] 9 JIC 0701 Unreported, High Court, 7th September, 2021), Hyland J. discharged a stay (granted at leave stage) on a requirement to the council made by the Minister under s. 9(7) of the 2000 Act to coordinate its Development Plan with Cork City Council.

4

In Cork County Council v. Minister for Housing, Local Government and Heritage (II) (No. 2) [2022] IEHC 281, ( [2022] 5 JIC 2701 Unreported, High Court, 27th May, 2022), I dealt with the substantive stage of that challenge and quashed the requirement under s. 9(7) of the 2000 Act.

5

I am now dealing with the costs of that latter challenge.

Law in relation to costs
6

For whatever reason, ss. 168 and 160 of the Legal Services Regulation Act 2015 appear to have somewhat complicated the understanding of the crucial issue of the law in relation to the costs of civil proceedings. In an attempt to summarise the law as it currently stands, I would suggest that it can be broadly summarised under the following six headings:

  • (i). If a party is entirely successful in civil proceedings, that is if it wins on all issues ( Higgins v. Irish Aviation Authority [2020] IECA 277, [2020] 10 JIC 0902 (Unreported, Court of Appeal, Murray J. (Noonan and Binchy JJ. concurring), 9 th October, 2020)), then it obtains costs unless the court otherwise orders having regard to statutory factors (s. 169 of the 2015 Act).

  • (ii). If a moving party obtains the order sought or if a defending party successfully resists an order, but if the winning party does not win on all issues, the court should consider what order is appropriate by reference to the question conferred by s. 168 of the 2015 Act. One particularly relevant factor is sub-s. (2)(d) to the effect that the court can award the party costs “where a party is partially successful in the proceedings, costs relating to the successful element or elements of the proceedings”.

  • (iii). In the application of that principle, the court can compare the proceedings as they actually ran and with how they would have run...

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2 cases
  • Reid v an Bord Pleanála and Others
    • Ireland
    • High Court
    • 24 January 2024
    ...costs of that exercise will be disproportionate to the “benefit” involved: see Cork County Council v. Minister for Housing (II) (No. 3) [2022] IEHC 473, [2022] 8 JIC 1501, Hickwell Ltd and Hickcastle Ltd v Meath County Council (No. 2) [2022] IEHC 631, [2022] 11 JIC 1803, Jennings & Anor v. ......
  • Egan and Another v Egan and Another (No. 2)
    • Ireland
    • High Court
    • 20 July 2023
    ...time involved in arguing this issue, this Court adopts the statement of Humphreys J. in Cork County Council v. Minister for Housing [2022] IEHC 473 regarding the undesirability of the costs of a costs hearing adding to the costs of litigation. At para. 6 (iv), he stated that: “If the issues......

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