Dunne v Min for the Environment and Others

[2007] IESC 60

Supreme Court

[S.C. No. 444 of 2004]
Dunne v. Minister for the Environment
Dominic Dunne
The Minister for the Environment, Heritage and Local Government, Ireland, The Attorney General, and Dun Laoghaire-Rathdown County Council

Cases mentioned in this report:-

Curtin v. Dáil Éireann éireannUNK [2006] IESC 27, (Unreported, Supreme Court, 6th April, 2006).

Dunne v. Dun Laoghaire-Rathdown County CouncilIRDLRM [2003] 1 I.R. 567; [2003] 2 I.L.R.M. 147.

Hewthorn & Co. v. HeathcottDLTR (1905) 39 I.L.T.R. 248.

Lancefort Ltd. v. An Bord Pleanála (No. 2)IRDLRM [1999] 2 I.R. 270; [1998] 2 I.L.R.M. 401.

Little v. Dublin Tram Co. & AnotherIRDLTR [1929] I.R. 642; (1929) 65 I.L.T.R. 41.

McEvoy v. Meath County CouncilIRDLRM [2003] 1 I.R. 208; [2003] 1 I.L.R.M. 431.

Mulcreevy v. Minister for EnvironmentUNKIR [2004] IESC 5, [2004] 1 I.R. 72; [2004] 1 I.LR.M. 419.

R. v. Lord Chancellor, ex parte Child Poverty Action GroupWLRUNK [1999] 1 W.L.R. 347; [1999] 2 All E.R. 755.

Sinnott v. MartinUNKUNKIR [2004] IEHC 67; [2004] IEHC 136, [2004] 1 I.R. 121.

Practice and procedure - Costs - Normal rule that costs follow event - Exception to normal rule - Discretion of courts in departing from normal rule - How discretion to be exercised - Public interest litigation - Whether issues of law raised in proceedings of such special and general importance as to warrant departure from normal rule - Rules of the Superior Courts 1986 (S.I. No. 15), O. 99 - Courts (Supplemental Provisions) Act 1961 (No. 39), s. 14(2).

Cur. adv. vult.

Murray C.J

6th December, 2007

1 In its substantive judgment on the merits in this case the court unanimously upheld the judgment of the High Court Judge and dismissed the appeal: see Dunne v. Minster for EnvironmentUNKIR [2006] IESC 49, [2007] 1 I.R. 194.

2 The appeal was concerned with questions as to whether s. 8 of the National Monuments (Amendment) Act 2004 offended Articles 5, 10, 15 and 40 of the Constitution and whether it breached the law of the European Communities and, in particular, the provisions of Council Directive 85/337/EEC of the 27th June, 1985, as amended by Council Directive 97/11/EC of the 3rd March, 1997.

3 Although the plaintiff lost his case in the High Court, the High Court Judge awarded him costs against the defendants, notwithstanding the normal rule that the losing party should pay the costs of the proceedings.

4 The defendants have appealed against the High Court order awarding costs of the High Court proceedings to the plaintiff. When judgment was delivered on the substance of the appeal the issue concerning the costs of the High Court and the costs of the appeal to this court was adjourned for submissions to a later date.

5 The plaintiff seeks to uphold the order awarding him costs and, as regards the appeal to this court, asks the court to exercise its discretion by awarding him his costs of the appeal or, in the alternative, making no order as to costs.

The High Court costs

6 The plaintiff primarily relied on the terms of the judgment of the High Court (Laffoy J.) delivered on the 18th March, 2005, on the question of costs.

7 In her separate written decision on the question of costs, the High Court (Laffoy J.) referred to the submission made by the parties and, in particular, considered two decisions of the High Court, namelyMcEvoy v. Meath County CouncilIR [2003] 1 I.R. 208 andSinnott v. MartinUNKUNKIR [2004] IEHC 67; [2004] IEHC 136, [2004] 1 I.R. 121, relied upon by the plaintiff. Having considered those authorities, both of which she noted cited a decision of the English High Court in R. v. Lord Chancellor, ex parte Child Poverty Action GroupWLR [1991] 1 W.L.R. 347, the High Court Judge concluded stating:-

"I am satisfied that counsel for the plaintiff has correctly identified the principles established in the recent jurisprudence of this court in accordance with which the court should exercise its discretion in considering an application for costs by an unsuccessful plaintiff or applicant in public law litigation, at any rate, against a protagonist which is a public body. I now propose applying those principles to the instant case."

8 The two principles identified by the High Court were:-

"(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 are of sufficient general public importance to warrant an order for costs being made in his favour."

9 These were described as the principles which governed the court's discretion to depart from the normal rule that costs follow the event. The fact that the defendant was a public body was also considered relevant.

10 In reaching its conclusion the High Court also stated that:-

"However, as a matter of principle I do not consider that the court's discretion as to costs in this type of public law litigation is in any way dependant on one or more of the issues of fact or law raised being decided in favour of the plaintiff or the applicant. Accordingly, there will be an order for costs in favour of the plaintiff against all the defendants."

11 Counsel for the defendants submitted that the High Court was incorrect in applying these two principles as determinative factors and, in effect, was establishing a category of cases in which the normal rule of costs following the event would not apply. It was submitted that, in any event, the High Court did not exercise its discretion correctly in placing excessive reliance on the two principles referred to, to the exclusion of all the circumstances, including the fact that the respondent had won the case.

12 A second aspect of the defendants' argument was the submission that the High Court wrongly considered as relevant the fact that the plaintiff had been successful in obtaining an interlocutory injunction halting the road...

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