Klohn v an Bord Pleanála

• Jurisdiction: Ireland
• Judge: Mr. Justice Clarke
• Judgment Date: 24 February 2017
• Neutral Citation: [2017] IESC 11
• Docket Number: [Appeal No: 314/2011 & 482/2011]
• Court: Supreme Court
• Date: 24 February 2017

Between/

Volkmar Klohn

Applicant/Appellant

and

An Bórd Pleanála

Respondents

and

Sligo County Council

and

Matthews Animal Collections Limited

Notice Parties

(to the original proceedings but not to the appeal)

[2017] IESC 11

[Appeal No: 314/2011 & 482/2011]

THE SUPREME COURT

Costs – European law – Oral hearing – Appellant seeking that the appeal be considered solely on the papers – Whether it would be possible to come to a just conclusion without an oral hearing

Facts: This appeal to the Supreme Court concerned certain issues relating to the amount of costs which could be awarded against the appellant, Mr Klohn, having regard to such European law as may be applicable in all the circumstances of the case. When a date was fixed for the conduct of the oral hearing in this appeal, the Court received a request from Mr Klohn in which he sought that the appeal be considered solely on the papers. The respondents, An Bórd Pleanála (the Board), indicated that they did not have any objection in principle to that course of action provided that they were not in any way prejudiced by the absence of an oral hearing. In those special and unusual circumstances the Court formally sat at the time which had been fixed for the oral hearing but simply indicated that it was proposed to consider the written submissions and determine whether it would be possible to come to a just conclusion without an oral hearing.

Held by Clarke J that it was necessary, in the context of this appeal, to refer a number of questions to the Court of Justice of the European Union for its opinion. In those circumstances Clarke J did not consider it necessary, in order that justice be done between the parties, that there required to be an oral hearing.

Clarke J held that, ultimately, in accordance with Union law, the formulation of the reference was entirely a matter for the Court.

Referral to the Court of Justice of the EU.

Judgment of Mr. Justice Clarke delivered the 24th February, 2017.

1. Introduction

1.1 It is not, I think, an exaggeration to say that the common law jurisdictions of Ireland and the United Kingdom have struggled with the implementation of the costs regime required by the Aarhus Convention and the relevant European Union measures adopted to give effect to it in European law (being, originally, Art. 10a of Directive 85/337/EEC as inserted by Directive 2003/35/EC but now Art. 11 of the codified Directive 2011/92/EU).

1.2 This appeal concerns certain issues relating to the amount of costs which can be awarded against the applicant/appellant ('Mr. Klohn') having regard to such European law as may be applicable in all the circumstances of the case.

1.3 It is important to record that, when a date was fixed for the conduct of the oral hearing in this appeal, the Court received a request from Mr. Klohn in which he sought that the appeal be considered solely on the papers. The respondents ('the Board') indicated that they did not have any objection in principle to that course of action provided that they were not in any way prejudiced by the absence of an oral hearing. In those special and unusual circumstances the Court formally sat at the time which had been fixed for the oral hearing but simply indicated that it was proposed to consider the written submissions and determine whether it would be possible to come to a just conclusion without an oral hearing.

1.4 The Court has concluded, and I agree, that it is necessary, in the context of this appeal, to refer a number of questions to the Court of Justice of the European Union ('CJEU') for its opinion. In those circumstances I did not consider it necessary, in order that justice be done between the parties, that there required to be an oral hearing. However, a number of aspects of this appeal require some brief comment.

2. The Written Submissions

2.1 The Constitution in Article 34.1 places a very high value indeed on justice being administered in public. In the past written submissions filed by the parties in the context of an appeal to this Court might reasonably have been regarded as representing an outline of the oral submissions to be made subsequently. However, increasingly, written submissions have come to form an independent part of the process and it frequently is the case that, so far as at least some aspects of an appeal are concerned, counsel are content to rest their case on what is set out in the written submissions. Thus what is said in written submissions has increasingly come to be seen as a substantive part of the case made on appeal.

2.2 In those circumstances the Court has arranged that the public may have access to written submissions (subject to appropriate exceptions consistent with any relevant requirement of law concerning privacy). (See Practice Direction SC15 – Written Submissions of the 7th October, 2013).

2.3 It is, therefore, important to emphasise that, even where, exceptionally, this Court is content to deal either with the entirety of an appeal or some aspect of an appeal or matter arising on an appeal without an oral hearing, it remains the case that there is public access to the argument addressed in respect of the issues which arose so that justice can, therefore, be properly said to have been administered in public.

2.4 In passing it is appropriate to note that applications for leave to appeal to this Court are now, under the provisions of the Court of Appeal Act, 2014 ('the 2014 Act'), permitted to be determined on the papers and without an oral hearing (see s.7(1) of the Courts (Supplemental Provisions) Act, 1961 as inserted by s.44 of the 2014 Act). In such a case the notice of...