Kilsaran Concrete Unlimited Company v O'Reilly Oakstown Ltd and O'Reilly Bros Ltd
| Jurisdiction | Ireland |
| Judge | Ms. Justice Siobhán Phelan |
| Judgment Date | 08 February 2022 |
| Neutral Citation | [2022] IEHC 63 |
| Court | High Court |
| Docket Number | 2021 No. 10 MCA |
In the Matter of the Planning and Development Acts 2000 to 2020
And in the Matter of an Application Pursuant to Section 160 of the Planning and Development Act, 2000 (As Amended)
[2022] IEHC 63
2021 No. 10 MCA
THE HIGH COURT
Planning and development – Remittal – Costs – Respondents seeking the costs of the motion to remit – Whether costs should follow the event
Facts: The applicant, Kilsaran Concrete Unlimited Company, brought proceedings pursuant to s. 160 of the Planning and Development Act 2000 (as amended) seeking orders restraining unauthorised development on lands owned by the first respondent, O'Reilly Oakstown Ltd, at Oakstown, Trim, County Meath. The applicant sought an order restraining the unauthorised use of the lands for and in connection with the manufacture of ready-mix concrete for sale off-site. In addition, the applicant sought orders requiring the removal of unauthorised structures which had been erected on the lands. The respondents brought an application to remit the proceedings to the Circuit Court on the basis that the market value of the lands was less than €3 million. The first respondent’s site was approximately 3 hectares in area. On 18 January 2022, the High Court delivered a ruling indicating that it would remit the s. 160 proceedings to the Circuit Court. Following the court’s ruling, counsel for the respondents applied for the costs of the motion to remit on the basis of the general principle that costs follow the “event”.
Held by Phelan J that the appropriate order in respect of the proceedings to date was to reserve the costs of the proceedings in the High Court of both parties to the Circuit Court judge because the s. 160 application had yet to be determined both on its merits and as to the applicability of the Environment (Miscellaneous Provisions) Act 2011. As for the costs of the remittal application, Phelan J held that as no determination had been made on the application of the 2011 Act, it was not possible to justly adjudicate upon liability for costs on the remittal application save and except to conclude that the applicant should not recover costs as against the respondents in respect of an application which they unsuccessfully opposed. The Court considered the proper order in the circumstances to be an order reserving the costs of the respondents only on the remittal application to the Circuit Court and to make no order in respect of the applicant’s costs (as they unsuccessfully opposed the remittal application). It seemed to Phelan J likely that this had the same effect as making the respondents’ remittal costs “costs in the cause” as the respondents had suggested but had the advantage of more clearly reflecting the reasoning of the Court as regards its approach to costs in circumstances where ultimately it would fall to the Circuit Court judge dealing with the proceedings to deal with costs in line with the determination taken by that Court both on the merits of the s. 160 application and on the applicability or otherwise of the costs protection regime provided for under the 2011 Act.
Phelan J held that, in remitting the s. 160 proceedings to the Eastern Circuit, County of Meath, and on the basis that the costs protection issue had not yet been determined, the Court would order the following: (i) the costs of the proceedings in the High Court (pre-remittal application) of both parties be reserved to the Circuit Court Judge; (ii) the respondents’ costs of the motion to remit to the Circuit Court be reserved to the Circuit Court Judge to be subject to that court’s determination on costs protection under the 2011 Act; and (iii) no order in respect of the applicant’s costs of the motion to remit to the Circuit Court.
Costs reserved to Circuit Court Judge.
JUDGMENT OF Ms. Justice Siobhán Phelan DELIVERED ON THE 8TH FEBRUARY, 2022
These proceedings are brought pursuant to s. 160 of the Planning and Development Act 2000 (as amended). In the proceedings, the applicant seeks orders restraining unauthorised development on lands owned by the first named respondents at Oakstown, Trim, County Meath. The applicant seeks an order restraining the unauthorised use of the lands for and in connection with the manufacture of ready-mix concrete for sale off-site. In addition, the applicant seeks orders requiring the removal of unauthorised structures which have been erected on the lands.
The respondents brought an application to remit these proceedings to the Circuit Court on the basis that the market value of the lands was less than €3 million. The first named respondent's site is approximately 3 hectares in area.
On 18 January 2022, this Court delivered a ruling indicating that it would remit the s. 160 proceedings to the Circuit Court: see Kilsaran Concrete Unlimited Company v. O'Reilly Oakstown Limited and another [2022] IEHC 33.
Following the court's ruling, counsel for the respondents applied for the costs of the motion to remit. In view of the potential complexities raised, not least in relation to the applicability of cost protection in Part 2 of the Environment (Miscellaneous Provisions) Act 2011 (the “2011 Act”) to these proceedings, the court requested the parties to provide submissions on costs and fixed a period of seven days from the 21st January 2022 for receipt of same.
Written submissions were received from the applicants but not from the respondents within that time-frame. On the 4th February 2022, written submissions were delivered late and were received by the Court with the consent of the applicant. The court notes and shares the applicant's concern at the delay caused by the late filing of submissions from the respondent. Delay is particularly regrettable in proceedings of this nature where there is a need for expedition.
There are two costs issues which arise for consideration following the decision to remit these s. 160 proceedings to the Circuit Court.
First, the court must deal with the costs of the proceedings in the High Court to date.
Secondly, the court must deal with the costs of the remittal application within the proceedings itself.
The court has been referred on behalf of the applicant to the decision in Parkborough Limited v. Kelly [2008] IEHC 401 by Laffoy J. where the court confirmed that where an order to remit is made, the normal rule in relation to the costs of the proceedings in the High Court is to reserve the costs of the High Court to the hearing of the action in the Circuit Court, so that the successful party in the lower court who is awarded reserved costs will be entitled to the costs of the proceedings in the High Court up to the date of remittal at the High Court scale. Laffoy J. refused to depart from that normal rule and awarded costs of the High Court proceedings in favour of either the plaintiff or defendant. At para. 23 of the judgment, Laffoy J. expressed the view that not only was such an order inappropriate in circumstances where the proceedings had not been determined, but that there was no jurisdiction to make it:
“The outcome of a defended plenary action is determined by a plenary hearing on oral evidence. There has been no such hearing in this case. If the order to remit is acceded to, and I have already indicated to the parties that I intend acceding to it, the plenary hearing will take place in the Circuit Court. The outcome will identify ‘the event’ by reference to which the fundamental rule in relation to where liability for costs should lie will be determined, although, of course, it will be at the discretion of the Circuit Court Judge whether the fundamental rule is applied. Until then, the Court has no jurisdiction to make an order as to who is liable for the costs.” (para. 23)
It is submitted on behalf of the applicant that the foregoing observations apply mutatis mutandis to proceedings which are heard on affidavit.
The court has further been referred to Delany and McGrath on Civil Procedure (Fourth Edition) at para. 8–19 where the jurisdiction of the lower court to deal with costs is addressed in the following terms:
“It is important to note that the jurisdiction of the lower court to deal with costs will be circumscribed by the order of remittal and it is not open to the lower court to award costs of the High Court proceedings if this has not been done by the High Court dealing with the remittal application. Thus, in McEvoy v. Fitzpatrick, where Hanna J. made an Order in the High Court of an application for remittal that the costs of the defendant in the High Court would be costs in the cause but made no provision for the plaintiff's costs, it was held by the Supreme Court that the Circuit Court judge had no power to allow the plaintiff those costs.”
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