Kelly Dunne v Guessford Ltd T/A Oxigen Environmental (Costs)

• Jurisdiction: Ireland
• Judge: Mr. Justice Garrett Simons
• Judgment Date: 19 July 2022
• Neutral Citation: [2022] IEHC 427
• Court: High Court
• Docket Number: 2018 No. 308 MCA

In the Matter of Section 160 of the Planning and Development Act 2000 (As Amended)

Between

Elaine Kelly Dunne

Noel Moore

Ann Flynn

David Kelly

Annette McGrath

Louise O'Sullivan

Claire Moore

Matt Kelly

Michael Kelly

Applicants

and

Guessford Limited (Trading as Oxigen Environmental)

Respondent

[2022] IEHC 427

2018 No. 308 MCA

THE HIGH COURT

Committal – Contempt – Costs – Applicants seeking costs protection – Whether costs protection applied

Facts: The applicants, Ms Dunne, Mr Moore, Ms Flynn, Mr Kelly, Ms McGrath, Ms O’Sullivan, Ms Moore and Messrs Kelly, applied to the High Court to have two directors of the respondent company, Guessford Ltd, committed to prison for alleged disobedience of an earlier court order. The application was unsuccessful. The applicants asserted a right to costs protection pursuant to Part 2 of the Environment (Miscellaneous Provisions) Act 2011. The respondent company and the directors submitted that costs protection did not apply. It was submitted that it is a condition precedent to the availability of the special costs rules that an application must have been made in advance for a costs-protection determination. It was further submitted that if the applicants had wished to avail of costs protection, then they should have brought an application for a costs-protection determination in advance of the hearing of the substantive application in July 2021. On the respondent’s argument, it is not open to a party to seek to invoke costs protection for the first time at the conclusion of proceedings. Having failed to make an application in advance for a costs-protection determination, the applicants were, it was said, not entitled to costs protection. Instead, the general rule was said to apply and the applicants were liable to pay the costs of the respondents as the successful party in the contempt motion. The respondents made a related argument to the effect that the applicants had not, in any event, established an entitlement to costs protection. In particular, it was said that the applicants had failed to adduce any financial evidence which demonstrated that the costs of the proceedings would be prohibitively expensive for them.

Held by Simons J that on the facts of the case, the proceedings, which sought to ensure compliance with a planning permission, were self-evidently of a type which attract costs protection. He held that it was incorrect, therefore, to say that an application under s. 7 of the Environment (Miscellaneous Provisions) Act 2011 is a condition precedent to costs protection. He held that the respondents’ related argument to the effect that the applicants, with a view to demonstrating that the legal costs would have been “prohibitively expensive”, should have adduced evidence as to their financial means and as to any fee arrangement which they have with their own solicitors, was also incorrect. He held that irrespective of whether such matters represent essential “proofs” for an application for a costs-protection determination, it is not necessary to address such matters on a costs application at the conclusion of the proceedings. He was satisfied that costs protection was equally applicable to the contempt motion. He held that the proceedings attracted costs protection under Part 2 of the 2011 Act. He held that the costs protection applied to both the substantive application for relief under s. 160 of the Planning and Development Act 2000 and the subsequent contempt motion issued within the proceedings. He held that there was nothing in the conduct of the proceedings which would justify a general departure from the default position that costs protection applies. He held that this was subject to an exception in respect of the affidavits filed on behalf of the applicants.

Simons J held that the affidavits filed on behalf of the applicants were unsatisfactory in a number of respects, resulting in the necessity for cross-examination of the deponents, and this added to the length of the hearing. He held that it was in the interests of justice that the applicants be made liable for the additional costs incurred. His provisional view was that the respondent company was entitled to set-off a sum of €10,000 (plus VAT if properly allowable under Order 99, rule 2) against the existing costs orders in favour of the applicants.

Costs order under Part 2 of Environment (Miscellaneous Provisions) Act 2011.

Appearances

Oisin Collins, SC and Margaret Heavey for the applicants instructed by O'Connell Clarke Solicitors

Michael O'Higgins, SC and Michael O'Donnell for the respondents instructed by John C. Kieran & Son Solicitors

JUDGMENT of Mr. Justice Garrett Simons delivered on 19 July 2022

INTRODUCTION

1 This judgment addresses the appropriate costs order to be made in respect of an unsuccessful application for attachment and committal. The applicants herein had applied to have two directors of a waste management company, Guessford Ltd, committed to prison for alleged disobedience of an earlier court order.

2 The general rule in relation to legal costs is that a successful party is entitled to recover its costs against the losing party. Were this general rule to apply in the present case, the applicants would be liable for the other side's costs of the unsuccessful application for attachment and committal. However, the applicants assert a right to costs protection pursuant to Part 2 of the Environment (Miscellaneous Provisions) Act 2011. The respondent company and the directors submit that costs protection does not apply.

PROCEDURAL HISTORY

3 The within proceedings are enforcement proceedings taken pursuant to Section 160 of the Planning and Development Act 2000 (“ PDA 2000”). The proceedings concern the planning status of a waste facility located at Barnan, Daingean, County Offaly (“ the waste facility”). The proceedings have been brought by a number of individuals who live in the vicinity of the waste facility (“ the applicants”). The respondent to the enforcement proceedings is the operator of the waste facility, Guessford Ltd (“ the respondent company”).

4 Save where necessary to distinguish between them in a particular context, the respondent company and the directors will be referred to collectively as “ the respondents”. It should be explained, however, that the only respondent actually named in the proceedings is the company. Just how the directors came to be involved in the proceedings is explained below.

5 This court delivered a reserved judgment on the substantive merits of the enforcement proceedings on 21 September 2021, Kelly Dunne v. Guessford Ltd [2021] IEHC 583 (“ the principal judgment”).

6 The parties subsequently submitted an agreed text of the draft order to the court, via the registrar, on 10 November 2021. The registrar then endeavoured to translate this agreed text into the house style of a formal court order. Unfortunately, the registrar's version did not capture all of the detail of the agreed text nor of the principal judgment.

7 The order had been perfected, i.e. formally drawn up, on 15 November 2021. The eight-week period allowed for compliance with the court order expired on 10 January 2022. The applicants took the view that the respondent company had not complied with the court order as of that date. Accordingly, the applicants issued a motion in February 2022 for the attachment and committal of two of the directors of the respondent company. That motion will be referred to as “ the contempt motion” where convenient. The contempt motion was unsuccessful for the reasons set out in a reserved judgment delivered on 2 June 2022, Kelly Dunne v. Guessford Ltd [2022] IEHC 264(“ the contempt judgment”).

8 The history of the contempt motion is set out in detail in the contempt judgment. For present purposes, the following points should be noted. First, the contempt motion was opposed by the respondent company alone. The solicitors acting on behalf of the company did not formally come on record for either of the directors until after the hearing of the contempt motion had concluded. This occurred at a short supplemental hearing on 30 May 2022. Counsel for the company confirmed on that date that his solicitor had instructions to represent one of the directors, Mr. Aidan Doyle. The contempt motion against the second director had been withdrawn in circumstances where the applicants were unable to prove personal service of the contempt motion. The fact that the directors were content to allow their interests to be protected by the legal team representing the company is, potentially at least, relevant to the allocation of legal costs. If an individual, who had not previously been implicated in proceedings, were required to engage legal representation at their own expense in response to a contempt motion, then they might have stronger grounds for saying that they should be entitled to recover their costs.

9 Secondly, the hearing of the contempt motion had been prolonged by the cross-examination of a number of individuals on the affidavits they had sworn in the context of the motion. The necessity for cross-examination had, in part, arisen as a result of certain shortcomings in the affidavits filed on behalf of the applicants. These shortcomings have been described in detail in the contempt judgment. Had the affidavits filed on behalf of the applicants been more accurate, much of the cross-examination could have been avoided and the hearing of the contempt motion completed in one day. In the event, the hearing took two full days.

10 Thirdly, the question of whether the special costs regime under Part 2 of the Environment (Miscellaneous Provisions) Act 2011 applied to the proceedings was not addressed by the parties at the time the court order was drawn up in November 2021. This is, presumably, because the question was academic in circumstances where the applicants had succeeded in the...