James Kenny v The Provost, Fellows and Scholars of the University of Dublin Trinity College

• Jurisdiction: Ireland
• Judge: Ms. Justice Baker
• Judgment Date: 26 August 2021
• Neutral Citation: [2021] IESC 57
• Court: Supreme Court
• Docket Number: S:LE:IE:2009:000376 S:LE:IE:2009:000387 High Court Record No: 2009 6638 P

James Kenny

Appellant

and

The Provost, Fellows and Scholars of the University of Dublin Trinity College

Respondent

[2021] IESC 57

MacMenamin J.

O'Malley J.

Baker J.

S:LE:IE:2009:000376

High Court Record No: 2008 1319 P

S:LE:IE:2009:000387

High Court Record No: 2009 6638 P

THE SUPREME COURT

Litigation – Costs – Taxation – Appellant appealing against the award of costs against him – Whether the appellant was entitled to the benefit of an approach to certain costs orders made in his litigation against the respondents that would have reflected the principle that they not be prohibitively expensive

Facts: The appellant, Mr Kenny, conducted litigation against the respondents, the Provost, Fellows and Scholars of the University of Dublin Trinity College (Trinity), and An Bord Pleanála concerning the development of student accommodation by the respondents near his principal private residence at Dartry, County Dublin. The appellant appealed to the Supreme Court from an order of the High Court (Clarke J) made on 28 January 2009 and from an order of Laffoy J given on 23 July 2009, following an ex tempore ruling. The core legal question which Mr Kenny said arose in the two appeals concerned the award of costs against him in the litigation against Trinity and the basis on which those costs were assessed at taxation. The primary legal basis of Mr Kenny’s argument derived from the principles first articulated in Article 9(4) of the Aarhus Convention, adopted into EU law by Article 10a of Directive 85/337/EEC inserted by Directive 2003/35/EC. Directive 85/337 as amended was transposed into domestic law by s. 50B of the Planning and Development (Amendment) Act 2010. One of the objectives underlying Aarhus and Directive 85/337 as amended was to encourage public participation in the protection of the environment, and that finds reflection in the principle that costs incurred by litigants in such litigation should not be so prohibitively expensive as to discourage participation by members of the public. Ireland failed to transpose Directive 85/337 as amended by the transposition date of 25 June 2005, and Mr Kenny claimed that notwithstanding a failure of transposition he was still at some of the relevant times entitled to the benefit of an approach to certain costs orders made in his litigation against Trinity that would have reflected the principle that they not be prohibitively expensive (NPE principles).

Held by Baker J that the most relevant decision was that of the CJEU in Klohn v An Bord Pleanála, Case C-167/17, ECLI:EU:C:2018:833 where what was in issue was the correct approach of a Taxing Master to the taxation of costs after the transposition date. Baker J noted that in Klohn the CJEU distinguished between allocation of costs, the order for which was final and res judicata applied, and the decision of the Taxing Master, the review of which gave rise to the reference under Article 267 TFEU. Baker J noted that at para. 71 the CJEU said that it was a matter for national law to determine whether a liability to pay costs or a quantum had become final. Baker J held that in the appeals at the date of the two orders under appeal, the decisions awarding Trinity costs against Mr Kenny and the measurement of those costs, had been finally determined as a matter of national law. Baker J noted that some of those decisions were made after the transposition date of 25 June 2005. Baker J held that Mr Kenny did not avail of national procedural measures to challenge the measurement of costs, or where he did he did not do so on NPE grounds. Baker J held that each of the appeals resulted in the refusal to permit Mr Kenny to proceed with his action or intended action. Clarke J was correct in Baker J’s view that the proposed action was bound to fail, and was therefore justified to refuse authorisation to commence the action. Baker J held that Laffoy J was correct that the challenge had no basis in law and, as the action sought only interlocutory relief, she too was correct that the action ought properly to be dismissed.

Baker J held that she would dismiss both appeals.

Appeals dismissed.

Judgment of Ms. Justice Baker delivered the 26 day of August 2021

1 . This judgment is given in respect of two separate appeals raising broadly similar but not identical questions of law and almost identical factual backgrounds. The appeals are of some antiquity and are part of litigation conducted over 20 years by Mr. Kenny against the respondents (“Trinity”) and An Bord Pleanála (“The Board”) concerning the development of student accommodation by the respondents near his principal private residence at Dartry, County Dublin. These two appeals are the last appeals in the litigation against Trinity, details of which will be recited in the course of the judgment.

2 . The appeals are from an order of Clarke J. (as he then was) made on 28 January 2009 for the reasons set out in his reserved judgment delivered on that day ( [2009] IEHC 35) and from an order of Laffoy J. given on 23 July 2009, following an ex tempore ruling.

3 . The core legal question which Mr. Kenny says arises in the two appeals concerns the award of costs against him in the litigation against Trinity and the basis on which those costs were assessed at taxation. As will become apparent, the High Court judgments had a broader scope and the question of the apportionment and measure of the costs was but one of a number of issues raised in the High Court proceedings, some of which sought to reverse or re-open finally determined decisions of the High Court and this Court made in earlier proceedings.

4 . The primary legal basis of Mr. Kenny's argument derives from the principles first articulated in Article 9(4) of the Aarhus Convention, adopted into EU law by Article 10a of Directive 85/337/EEC inserted by Directive 2003/35/EC (now Article 11 of the codified Directive 2011/92/EU). Directive 85/337 as amended, was transposed into domestic law by s. 50B of the Planning and Development (Amendment) Act 2010 (“the Act of 2010”). One of the objectives underlying Aarhus and Directive 85/337 as amended is to encourage public participation in the protection of the environment, and that finds reflection in the principle that costs incurred by litigants in such litigation should not be so prohibitively expensive as to discourage participation by members of the public.

5 . Ireland failed to transpose Directive 85/337 as amended by the transposition date of 25 June 2005, and Mr. Kenny claims that notwithstanding a failure of transposition he was still at some of the relevant times entitled to the benefit of an approach to certain costs orders made in his litigation against Trinity that would have reflected the principle that they not be prohibitively expensive. In the course of the hearing of the appeals the parties adopted, and I now adopt for convenience, the shorthand “NPE”. I will use the phrase “NPE principles” but without taking any view as to whether they are rules of law or procedure, or guiding principles.

6 . This Court has delivered two judgments in the very recent past in the litigation commenced by Mr. Kenny which have some relevance to the matters in these appeals. The appeal of Mr. Kenny against the dismissal by the High Court of proceedings against Trinity pursuant to s. 160 of the Planning and Development Act 2000 (as amended) (“the Act of 2000”) was dismissed: see the judgment of O'Malley J. dated 14 August 2020 [2020] IESC 54; and the dismissal of the appeal against an order for sale of the principal private residence of Mr. Kenny and his wife by Trinity which had registered its taxed costs as a judgment mortgage. That resulted in the making of a conditional order for sale of the on 21 December 2020: [2020] IESC 77.

7 . In order to understand the context in which this judgment is given it is necessary to set out an overview of the history of the development at Dartry, of the litigation between Mr. Kenny and Trinity, and other litigation also concerning the development where the Board was the respondent. For convenience I set out in the appendix a list of the litigation.

The planning permission

8 . In November 1999 Dublin City Council granted permission to Trinity for the construction of three student halls of residence at a site in Dartry. The decision was appealed and the Board in August 2000 granted planning permission subject to 19 conditions. Performance of some of those conditions was then the subject of a second decision by Dublin City Council which in January 2002 issued an order that the documents and plans submitted demonstrated satisfactory compliance with the conditions. Construction then commenced, and the development was finally completed in January 2004.

9 . For the purpose of the planning application, Trinity submitted an EIS stated to be made in compliance with its obligations under Directives 85/337 and 97/11. Mr. Kenny has at all material times maintained that the EIS was inadequate in particular in its treatment of the location and design for the centralised boiler house within the development and in its description of the emissions stack for that boiler.

10 . Mr. Kenny commenced numerous proceedings against Trinity relating to the development. These fall into three broad categories: proceedings to reverse the planning permission by judicial review of the decision of the Board; proceedings for enforcement under s. 160 of the Act of 2000; and, proceedings challenging the decision of Dublin City Council that Trinity had complied with the conditions in the planning permission. Trinity was a party in some of these proceedings, and in some was the only named defendant/respondent; in others it was named either as notice party or co-respondent to proceedings where the Board was the primary respondent/defendant. The litigation by then was fairly described by Fennelly J. as a “marathon”.

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