Harrington v an Bord Pleanála and Others

• Jurisdiction: Ireland
• Judge: Mr. Justice Charleton,Macken J.
• Judgment Date: 28 May 2008
• Neutral Citation: [2006] IEHC 223,[2008] IEHC 152
• Docket Number: 1164JR/2004,no.567 JR/2008
• Court: High Court
• Date: 28 May 2008

HARRINGTON v BORD PLEANALA & ORS

Between:

MARTIN HARRINGTON

Applicant

-and-

AN BÓRD PLEANÁLA, IRELAND AND THE ATTORNEY GENERAL

Respondents

-and-

SHELL E. AND P. IRELAND LIMITED, MAYO COUNTY COUNCIL AND OTHERS

Notice Parties

[2006] IEHC 223

1164JR/2004

THE HIGH COURT

PRACTICE AND PROCEDURE:

Costs

Planning judicial review - Principles to be applied - Exercise of discretion - Whether losing party acting in public interest - Whether applicant having no personal private interest in outcome of proceedings - Whether issues raised of sufficient public importance to warrant order for costs to unsuccessful applicant - Rules of the Superior Courts 1986 (SI 15/1986), O 99 - Dunne v Minister for Environment [2005]IEHC 79 (Unrep, Laffoy J, 18/3/2005) and R v Lord Chancellor, ex parte Child Poverty Action Group [1999] 1 WLR 347 distinguished - Costs of leave application to be paid by respondents and notice parties; costs of application for certificate to appeal to be paid by applicant (2004/1164JR - Macken J - 11/7/2006) [2006] IEHC 223 Harrington v An Bord Pleanála

The High Court refused the applicant’s application for leave to apply for judicial review pursuant to s. 50(4) of the Planning and Development Act 2000 and refused the applicant’s application for a certificate for leave to appeal to the Supreme Court from the decision. The unsuccessful applicant applied for his costs and the respondents and the notice parties applied for their costs.

Held by Macken J. in making an order for costs in favour of the applicant against the respondents and the notice parties in respect of the leave application and making an order for costs in favour of the respondents and notice parties against the applicant in respect of the application for a certificate for leave to appeal that an unsuccessful applicant who brought judicial review proceedings under the planning code and had an interest in the outcome of the matter was not precluded from being granted his costs in an appropriate case.

Reporter: R.W.

PLANNING & DEVELOPMENT ACT 2000 S50(4)

RSC O.99

DUBSKY v IRELAND UNREP MACKEN 13.12.2005 2006/16/3269

PLANNING & DEVELOPMENT ACT 2000 S50

DUNNE v MIN ENVIRONMENT UNREP LAFFOY 18.3.2005 2005/1/ 3727 2005 IEHC 79

R v LORD CHANCELLOR EX PARTE CPAG 1998 2 AER 755 1999 1 WLR 347

TREATY OF ROME ART 234

PLANNING & DEVELOPMENT ACT 2000 S50(4)(f)

1 JUDGMENT delivered by Macken J. on the 11th day of July 2006

Macken J.

2 This judgment concerns only the question of costs in the matter. The case had two stages to it. The first was the hearing of the application for leave to issue judicial review proceedings. I delivered judgment on that application in July 2005. The second stage was the application for a certificate for leave to appeal to the Supreme Court arising from my decision pursuant to s.50 (4) of The Planning and Development Act2000. I delivered judgment on that issue in March 2006. At the request of the parties, I adjourned the application for costs and this judgment relates to that issue only.

3 The principles applicable to the entitlement to costs are quite well established. The application of those principles to the question of costs may not have automatic or identical consequences to all stages of the matter before me. It is not necessarily appropriate, in my view, to consider the two stages of the proceedings in this matter together, in terms of costs. I will return to that issue later.

4 It is common case between the parties, that the right to costs is governed by Order 99 of the Rules of the Superior Courts, and that prima facie, a losing party in an application for judicial review can normally expect to be ordered to pay the taxed costs of a successful party. But while that is the normal rule, the overriding principle of law is that costs are always at the discretion of the court. The reason for this overriding principle is to permit a court, in appropriate cases, to depart from the norm by granting them to a losing party, or by making no order as to costs.

5 This judgment is concerned with applications:

6 (i) by the unsuccessful Applicant for his costs of the proceedings in this court against the respondents and the notice parties; and

7 (ii) by the respondents and the notice parties for costs against the Applicant.

8 I have had the benefit of written submissions and of oral arguments made, which I have considered in full, including all counsels” exposure of the principles found in the jurisprudence on this issue. I had an opportunity to consider these same principles in the recent case ofDubsky v Ireland (unreported, the High Court, 13th December 2005).

9 The Applicant submits that the jurisprudence on the exercise of the discretion vested in the court to depart from the normal rule that costs follow the event is governed by the following principles, namely, (a) that the losing party was acting in the public interest in the matter, and (b) that the issues raised by the proceedings were of sufficient general public importance to warrant an order for costs being made in his favour, although having been unsuccessful in his claim. Counsel for the Applicant argues that the Applicant comes within these principles, firstly because the application was not brought by the Applicant merely as a private personal matter, and secondly, because he had raised serious legal issues of general importance concerning the scope of Section 50 of the Planning and Development Act2000which the judgment had clarified, as well as issues of European Law. He therefore submits that the application was a genuine and bona fide public interest challenge.

10 The Respondents and the Notice Parties claim that the judgment followed an established line of authority which, while not dealing with a factual basis identical to the Applicant's claim, nevertheless was sufficiently clear to permit the court to rely on that line of authority and to apply it without difficulty in the present case. Therefore it could not be said that the judgment in this case was one concerning a public law issue of significant general importance. Further, they argue that in the present case the Applicant does not fall within the ambit of the first requirement either, since his challenge was based essentially on his private personal interest in the matter. The jurisprudence they argue makes it clear that, that being so, the Applicant cannot succeed in his application for costs. In regard to both of these matters, the Respondents and the Notice Parties, as also did the Applicant, relied on jurisprudence both in this jurisdiction and in the United Kingdom.

Conclusion:

11 There is, as stated above, ample jurisprudence to which the court can refer in seeking guidance as to the appropriate principles to be applied, on an application of this nature for costs. The issue was considered in detail in the judgment of Laffoy, J. inDunne v The Minister for the Environment Heritage and Local Government & Ors (unreported, The High Court, 18th March 2005), in which the learned Judge analysed the then existing jurisprudence, and traced the history of the adoption of the current principles and their application in case law, both by the English courts and, more particularly, by the courts in this jurisdiction:

"In reliance on a number of recent authorities, primarily, the judgment of this court (Quirke J.) delivered on 24th January, 2003 in McEvoy v. Meath County Council [2003] 1 IR 208 and the judgment of this court (Kelly J.) delivered on 31st March, 2004 in Sinnott v. Martin [2004] 1 IR 121, counsel for the plaintiff submitted that the exercise of this court's discretion to depart from the normal rule that costs follow the event is governed by two principles:"

(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.

12 McEvoy v. Meath County Council involved a challenge by way of judicial review to the making and adoption of a development plan for County Meath, the first applicant being an elected member of Kildare County Council and the second applicant being the chairman of An Taisce (the National Trust for Ireland). The challenge was unsuccessful. In considering the applicants” application for an order for costs against the respondent, Quirke J. considered a number of authorities, one of which was a decision of the English High Court in R. v. Lord Chancellor, ex parte Child Poverty Action Group [1999] 1 W.L.R. 347 which concerned the jurisdiction of the English High Court to make a pre-emptive costs order. Quirke J., having noted that Dyson J. acknowledged that there was a distinction to be made between ordinary private law litigation, on the one hand, and what he called "public interest challenges" on the other hand, quoted the following passage from the judgment of Dyson J. at p. 353 in which he explained his understanding of the concept of a public interest challenge:

"The essential characteristics of a public law challenge are that it raises public law issues which are of general importance, where the applicant has no private interest in the outcome of the case. It is obvious that many, indeed most judicial review challenges, do not fall into the category of public interest challenges so defined. This is because, even if they do raise issues of general importance, they are cases in which the applicant is seeking to protect some private interest of his or her own."

13 Quirke J. found that in the proceedings before him neither of the applicants was seeking to protect some private interest of his own. They had acted solely by way of furtherance of a valid public interest in the environment and, in particular, in the...