James Kenny v an Bord Pleanála

• Jurisdiction: Ireland
• Court: High Court
• Judge: Mr. Justice Cooke
• Judgment Date: 23 July 2010
• Neutral Citation: [2010] IEHC 321
• Docket Number: [71 I.A./2010]
• Date: 23 July 2010

[2010] IEHC 321

THE HIGH COURT

[71 I.A./2010]

Kenny v Bord Pleanála

MR JUSTICE COOKE

APPROVED TEXT

IN THE MATTER OF AN INTENDED ACTION

BETWEEN

JAMES KENNY

PLAINTIFF

AND

AN BORD PLEANÁLA

DEFENDANT

EEC DIR 85/337 ART 10(A)

CMSN v IRELAND 2010 ENV LR 8 2009 ECR I-6277

CONVENTION ON ACCESS TO INFORMATION, PUBLIC PARTICIPATION IN DECISION-MAKING & ACCESS TO JUSTICE IN ENVIRONMENTAL MATTERS 25.6.1998 (AARHUS CONVENTION) ART 3(8)

CONVENTION ON ACCESS TO INFORMATION, PUBLIC PARTICIPATION IN DECISION-MAKING & ACCESS TO JUSTICE IN ENVIRONMENTAL MATTERS 25.6.1998 (AARHUS CONVENTION) ART 3(9)

EEC DIR 2003/35 ART 6

PRACTICE AND PROCEDURE

Isaac Wunder order

Liberty to issue plenary summons - Proceedings claiming injunction restraining enforcement of order for costs - Complaint to European Commission - Investigation of complaints of plaintiff - Request for comments on amount of costs in respect of leave stage of judicial review - Response of Irish authorities - Order for costs pre-dating Directive requiring access of review procedure not prohibitively expensive - Validity of order for costs - Constitutional right of access to courts - Purpose of Isaac Wunder order - Whether reliefs proposed unfounded and unstateable - Application refused (2010/71IA - Cooke J - 23/7/2010) [2010] IEHC 321

Kenny v An Bord Pleanála

Facts The plaintiff applied ex parte for liberty to issue a plenary summons in the Central Office of the High Court in a proceeding to be brought against the defendant named herein in which it was proposed to claim as the principal relief an injunction restraining the defendant and the City Sheriff from enforcing an order for costs recovered by the defendant against the plaintiff in judicial review proceeding between the same parties on 15 March 2001. The leave of the Court to issue the summons was necessary because of the existence of an Isaac Wunder order restraining the plaintiff from issuing further proceedings against the defendant. The plaintiff sought an injunction on the basis that the plaintiff has made a complaint to the European Commission about the outcome of those judicial review proceedings. The plaintiff's complaint to the European Commission essentially relates to a failure by the State to comply with Article 10a of Council Directive 85/337/EEC and the high costs of leave applications in judicial review proceedings. Article 10a was introduced into CD 85/337/EEC by Directive 2003/35EC of 26 May 2003, Article 6 of which required the amendments to be brought into force by transposition into national law by 25 June 2005, at the latest.

Held by Cooke J. in refusing the application: That even if the European Commission had any reason to question the adequacy of Ireland's measures giving effect to the costs aspects of judicial review proceedings for the purposes of Article 10a, no further proceeding taken by it could have any retroactive effect upon a costs order validly obtained in 2001 more than four years before the implementation date of the amending provisions. Consequently, the reliefs proposed to be claimed in the draft plenary summons were unfounded and unstateable.

Reporter: L.O'S.

Mr. Justice Cooke

1 This is anex parte application by the above named plaintiff for liberty to issue a plenary summons in the Central Office of the High Court in a proceeding to be brought against the above named defendant in which it is proposed to claim as the principal relief an injunction restraining the defendant and the City Sheriff (although the latter is not to be joined as a party,) from enforcing an order for costs recovered by the defendant against the plaintiff in a proceeding between the same parties bearing the record number 2000/532 JR. The leave of the Court to issue the summons is necessary because an order of 30^th March, 2006, ( Clarke J.) in a case brought by this plaintiff against the Provost, Fellows and Scholars of the University of Dublin, Trinity College ("the University") and An Bord Pleanála (Record No. 2005/3320P) included a so-called "Isaac Wunder order" which restrains the plaintiff from issuing:

"…any further proceedings against the second named defendant herein without the prior leave of this Honourable Court...