Dunne v Min for the Environment and Others
THE SUPREME COURT
444104,133 & 139/05
Practice and procedure - Costs - General rule that costs follow event - Public interest litigation - Whether issues of such special and general importance as to warrant departure from general rule - Courts (Supplemental Provisions) Act 1961, s. 14(2) - Rules of the Superior Courts, O. 99, S.I. 15/1986
The plaintiff was unsuccessful in his claim which concerned questions as to whether s. 8 of the National Monuments (Amendment) Act 2004 offended Articles 5, 10, 15 and 40 the Constitution. Although the plaintiff lost his case, the High Court awarded him costs. The Supreme Court dismissed the plaintiff's appeal. This judgment concerned the issue of the costs of the High Court and Supreme Court.
Held by the Supreme Court (Murrary CJ, Denham, Hardiman, Geoghegan and Kearns JJ) in awarding costs of both the High and Supreme Court to the State that the issues raised in the proceedings were not of such special and general importance as to warrant a departure from the general rule that the losing party should pay the costs of the proceedings. The fact that the plaintiff was not seeking a private personal advantage and that the issues raised were of special and general public importance were factors which might be taken into account in deciding whether there was sufficient reason to exercise a discretion to depart from the general rule that costs follow the event.
JUDGMENT of Murray C.J. on the question of costs delivered on the 6th day of December 2007
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.
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 27th June, 1985 as amended by Council Directive 97/11/EC of 3rd March, 1997.
Although the appellant lost his case in the High Court, the learned High Court Judge awarded him costs against the first named respondent notwithstanding the normal rule that the losing party should pay the costs of the proceedings.
The third named respondent has appealed against the High Court Order awarding costs of the High Court proceedings to the appellant. 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 on a later date.
The appellant 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
The appellant primarily relied on the terms of the judgment of the High Court delivered on 18th March, 2005 on the question of costs.
In her separate written decision on the question of costs the learned High Court Judge referred to the submission made by the parties and in particular considered two decisions of the High Court, namely McEvoy - v- Meath County Council 2003 1 IR 208
Sinnott -v- Martin 20041 IR 121 relied upon by the appellant. 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 Group (1991) 1 WLR 347, the learned 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. / now propose applying those principles to the instant case."
The two principles identified by the learned High Court Judge were:
"(1) That the
Plaintiffwas acting in the publicinterest in a matter which involvedno private personal advantage;
(2)That the issues raised bythe proceedings are of
sufficient general public importance to warrant an order for costs being made in his favour."
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 respondent or defendant was a public body was also considered relevant.
In reaching her conclusion the learned High Court Judge also stated that
"However, as a matter of principle 1 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."
Counsel for the respondent submitted that the learned High Court Judge 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 learned High Court Judge did not exercise her discretion correctly in placing excessive reliance on the two principles referred to the exclusion of all the circumstances, including the fact that the respondent had won the case.
A second aspect of the respondent's argument was the submission that the learned trial Judge wrongly considered as relevant the fact that the Plaintiff had been successful in obtaining an interlocutory injunction halting the road project in question in earlier and separate proceedings referred to as "Dunne No. 1 ", and also that this had in turn led to a successful challenge by another party in other proceedings to a Ministerial Order concerning the same road project. The passage in the decision on costs to which Counsel for the Respondent referred reads as follows:
"Of particular significance on the issue of costs, in my view, is the fact that the plaintiff was successful in obtaining an interlocutory injunction in Dunne No. 1, which effectively halted road works at Carrigmines Castle without a valid consent under s. 14 of the National Monuments Act, 1930, as amended. This led to the making on 3rd July, 2003 of the joint consent and the Ministerial Order which were subsequently successfully challenged in Mulcreevy -v- Minister for the Environment, Heritage and Local Government and Dun Laoghaire County Council 20041 I.L.R.M. 419. That successful challenge, in turn, provoked the enactment of a special provision in s. 8 of the Act of 2004 in relation to the south eastern route, which 1 have concluded was given by a policy designed to ensure the completion of the motorway without any input in relation to national monument protection implications from any external party to the first and fourth defendants and their respective advisors. Against that background, 1 consider that the issues raised in these proceedings, adopting the words of Dyson J. in the CPA G case at p. 358, were "truly ones of general public importance" : They were difficult issues of public law. It was in the public interest that they be clarified."
In the course of the appeal Counsel for the respondent submitted that the previous proceedings were not factors which the learned trial Judge should have taken into account in determining that the issues in this particular case were of general public importance.
Counsel for the appellant submitted that firstly the learned High Court Judge was correct in the approach which she adopted and secondly she was, in any event, exercising her discretion in the ordinary way having
regard to all the circumstances of the case and that this Court should not interfere with the exercise of that discretion.
As regards the second aspect of the respondent's submission Counsel for the appellant submitted that on a correct interpretation of the learned trial Judge's decision she did not rely on the previous proceedings as a material fact in her decision to award costs. In any event it was submitted that the decision which she made was within the ambit of her discretion.
At least on one view of the learned trial Judge's judgment the question of costs was decided on the basis that this case fell into a particular category of cases in which a discretion to depart from the normal rule would invariably be governed by the two principles identified by Counsel on the basis of the case-law cited as establishing two determining principles. In the course of her decision the learned High Court Judge stated "that the Plaintiff was within that rare category of litigants who truly have no private interest in the outcome of the proceedings." Iam not sure that it is such a rare category but if the alternative view advanced by Counsel for the appellant were taken, namely that the learned trial Judge's decision was within the normal ambit of her discretion to depart from the general rule the question still arises as to whether any undue weight was given to the two principles relied upon.
The basic law governing the question of costs in civil proceedings may be found in s. 14(2) of the Courts (Supplemental Provisions) Act 1961 which provides that the jurisdiction of the High Court "shall be exercised so far as regards pleading, practice and procedure, generally, including liability to costs, in the manner provided...
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