Friends of the Irish Environment CLG v The Legal Aid Board

• Jurisdiction: Ireland
• Judge: Mr. Justice Brian Murray
• Judgment Date: 31 July 2023
• Neutral Citation: [2023] IECA 190
• Court: Court of Appeal (Ireland)
• Docket Number: High Court Record No. 2019/169JR

Between

Friends of the Irish Environment CLG

Applicant/Appellant

and

The Legal Aid Board

Respondent

and

Ireland and the Attorney General

Notice Parties

[2023] IECA 190

Barniville P.

Murray J.

Noonan J.

High Court Record No. 2019/169JR

Court of Appeal Record No. 2021/01

THE COURT OF APPEAL

CIVIL

NO REDACTION NEEDED

JUDGMENT of Mr. Justice Brian Murray delivered on the 31 ^st of July 2023

(Costs)

1 . In the first judgment I delivered in this matter (with which Barniville P. and Noonan J. agreed) ( [2023] IECA 19) I rejected the applicant's claim that it was a ‘ person’ for the purposes of those provisions of the Civil Legal Aid Act 1995 (‘ the 1995 Act’) which addressed the eligibility to apply for, and obtain, legal aid from the respondent. I therefore concluded that on its proper construction, the 1995 Act allows the provision of legal aid and advice only to individuals and not to bodies corporate. The applicant had also contended that it had a right to seek legal aid for certain types of proceedings pursuant to Article 47 of the EU Charter of Fundamental Rights (‘ the Charter’). However, I found that this did not advance the applicant's claim on the basis that it would be contra legem the 1995 Act to find that bodies corporate were eligible to apply for and obtain legal aid pursuant to its provisions.

2 . I further noted that the issue of whether a reference should be made to the CJEU arising – in the light of Article 47(3) of the Charter – from the complete exclusion of legal persons from the possibility of obtaining legal aid in cases involving issues of EU law, had not been argued in the course of the appeal. The Court allowed the applicant the opportunity to make further submissions as to the basis for such a reference. Upon receiving submissions, in a subsequent judgment (with which Barniville P. and Noonan J. also agreed) ( [2023] IECA 63) I refused the applicant's application for such a reference, deciding that it would not be appropriate or fair to permit the proceedings to be re-directed in the manner contended for by the applicant, and that the answers to the questions it was proposed should be referred would not have affected the outcome of the case.

3 . In the aftermath of that judgment the parties informed the Court that they were not in a position to agree the disposition of the costs, and a short hearing was convened. The Legal Aid Board does not seek the costs of the appeal against the applicant notwithstanding its success in these proceedings, and adopts the same position as taken before the High Court: that while s. 50B of the Planning and Development Act, 2000 does not apply to these proceedings, the Legal Aid Board nevertheless proposes to apply environmental costs protection by analogy on the basis that it was appropriate that these proceedings be treated as an ‘off-shoot’ of the applicant's proceedings challenging the validity of the National Planning Framework and National Development Plan. That action did come within the scope of Article 9(4) of the Aarhus Convention to which effect is given by s. 50B, insofar as it provides that certain environmental proceedings should not be ‘prohibitively expensive’.

4 . The applicant is renewing the application that it made to the High Court for the respondent and notice party to pay a portion of its costs, and suggests that the appropriate portion should be the costs of the Court of Appeal with no order for the costs of the High Court.

5 . The notice parties' position is that they are agreeable to bearing their own costs in respect of this matter. However, they do not agree to an Order granting the applicant its costs in circumstances where the applicant has been unsuccessful at every stage of these proceedings.

6 . In the course of the oral hearing, counsel for the applicant argued that this case falls within those authorities which allow a Court to make an order for costs in favour of an unsuccessful applicant. Counsel contended firstly that this is a test case in the sense that it is determining an issue which relates to many other corporate bodies, secondly that this is a case brought with a public interest aspect, and thirdly that this is a case of some novelty insofar as the interpretation of the 1995 Act is concerned.

7 . Counsel for the respondent contended that it is clear from both Collins v. Minister for Finance [2014] IEHC 79 and Kerins v. McGuinness & Ors. [2017] IEHC 217 that the category of cases in which a costs order may be made in favour of an unsuccessful applicant is very narrow, and disagreed that this is a test case, arguing that there are no other cases that depend on the outcome of these proceedings. In terms of novelty, counsel suggested that any case involving statutory interpretation involves an application of principles of law, and that there is nothing particularly novel about what was considered in these proceedings. Counsel further observed that any ruling on statutory interpretation will have general application but that this is not a feature which would place these proceedings within the narrow exceptions whereupon a costs order in favour of an unsuccessful plaintiff would be made.

8 . Counsel for the notice parties adopted the submissions of the Legal Aid Board, and emphasised that it would not be appropriate for costs to be awarded against the Attorney General save in exceptional circumstances, especially in circumstances where the Attorney is joined to assist the Court. As such, counsel argued that it would be inappropriate to inhibit the Attorney in participating in important cases by putting the Attorney at risk of an order for costs made against him.

9 . The leading authority governing the power of the Court to depart from the normal costs rules in proceedings raising issues that are said to be of public importance, remains the decision of the Supreme Court in Dunne v. Minister for the Environment [2007] IESC 60, [2008] 2 IR 775 (‘ Dunne’). There, the plaintiff failed both in the High Court and on appeal in constitutional challenges brought by him to the validity of provisions of the National Monuments Act 1930, as amended. The High Court judge (Laffoy J.) had made an order for costs in his favour nowithstanding his having lost his action: she attached importance to the fact the plaintiff had been acting in the public interest in a matter which involved no private personal advantage, and to her view that the issues raised by the proceedings were of sufficient general importance to warrant an order for costs in the applicant's favour. The plaintiff having failed in his appeal on the merits, the issue of costs came back before the Supreme Court on foot of the combined appeal of the defendants against the High Court costs order and the plaintiff's application for the costs of the appeal or, in the alternative, his request that the Court make no order as to those costs.

10 . In allowing the defendants' appeal and directing that they recover from the plaintiff the costs of both the High Court proceedings and the appeal, Murray C.J. (with whose judgment Denham, Hardiman, Geoghegan and Kearns JJ. agreed) emphasised the following:

• (i) There is no fixed rule or principle determining the ambit of the discretion of the Court to depart from the position provided for in Order 99 of the Rules of the Superior Courts (as they then stood) that costs should ‘follow the event’ and, in particular, there was no overriding principle which determines that the discretion must be exercised in favour of an unsuccessful plaintiff in specified circumstances or in a particular class of case (para. 17).

• (ii) However, the judgment stresses, the normal rule is that if the issues in the case have been decided in favour of one party, that generally means that the successful party is entitled to his or her costs (para. 30).

• (iii) The fact that a plaintiff was not seeking a private personal advantage and that the issues in a case were of special and general public importance were factors that may be taken into account, along with all other circumstances of the case, in deciding whether there is sufficient reason to exercise a discretion to depart from the general rule that costs follow the event (para. 18).

• (iv) However, the fact that the plaintiff may have been acting in the public interest in bringing the case and had no personal interest in the outcome, and that the case raised an issue of general public importance were not determining factors in a category of public interest litigation (para. 18).

• (v) Instead, the appropriate course of action is to assess each case according to its own context, facts and circumstances (para. 20). Murray C.J. explained the reason for adopting this approach by reference to what he described as ‘the rule of law’ that costs normally follow the event (para. 26):

  ‘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.’

• (vi) It is neither possible nor desirable to attempt to list or define all of the factors which warrant a departure from the normal rule as to costs (para. 27). It is invariably a combination of factors that merit such a departure and the matter falls to be addressed on a case by case basis (para. 28).

11 . The essential reason for the Court's decision was explained by Murray C.J. as...