Right to Know CLG v Commissioner for Environmental Information

• Jurisdiction: Ireland
• Judge: O'Donnell C.J.,MacMenamin J.,O'Malley J.,Baker J.,Hogan J.
• Judgment Date: 28 June 2022
• Neutral Citation: [2022] IESC 28
• Court: Supreme Court
• Docket Number: S:AP:IE:2021:000067 High Court Record No. 2019/250 MCA

In the Matter of the European Communities (Access to Information on the Environment) Regulations 2007–2018

Between/

Right to Know CLG

Appellant/Respondent

and

Commissioner for Environmental Information

Respondent/Respondent

and

Minister for Communications, Climate Action and the Environment, Ireland and the Attorney General

Respondents/Appellants

and

Office of the Secretary General to the President (OSGP)

Notice Party

[2022] IESC 28

O'Donnell C.J.

MacMenamin J.

O'Malley J.

Baker J.

Hogan J.

S:AP:IE:2021:000067

High Court Record No. 2019/249 MCA

High Court Record No. 2019/250 MCA

AN CHÚIRT UACHTARACH

THE SUPREME COURT

Costs – Questions of public importance – Environment (Miscellaneous Provisions) Act 2011 s. 3 – Respondent seeking costs – Whether the litigation raised novel and general questions of public importance

Facts: The Supreme Court allowed the appeal of the respondents/appellants, the Minister for Communications, Climate Action and the Environment, Ireland and the Attorney General (the State parties), against the order of the High Court and dismissed the cross-appeal of the appellant/respondent, Right to Know CLG (Right to Know): [2022] IESC 19. The judgment concerned the question of whether the President of Ireland was amenable to a request for information under the European Communities (Access to Information on the Environment) Regulations 2007-2014 (the AIE Regulations) or Directive 2003/4/EC (the AIE Directive), and the separate question of whether the President could properly be described as a “public authority” within the meaning of the AIE Regulations or the AIE Directive. The conclusion of Baker J, with whom the other members of the Court agreed, was that as a result of the constitutional immunity afforded to the President by Article 13.8.1° of the Constitution, the President is not amenable to a request for information under the AIE Regulations or the AIE Directive; further, that the President is not a “public authority” in the sense intended by the legislation, the AIE Regulations and/or as a matter of European law. Right to Know submitted that it should be awarded all, or alternatively a portion of, its costs of the appeal against the State parties, primarily on the grounds that the litigation raised novel and general questions of public importance, and that the proceedings were not seeking a private personal advantage. The parties agreed that the starting point for the consideration of costs in the appeal was s. 3(1) of the Environment (Miscellaneous Provisions) Act 2011 which provides a presumptive position that there be no order as to costs. The State parties proposed accordingly that there should be no order for costs. Right to Know contended that it should be awarded its costs, notwithstanding that it was unsuccessful on appeal and relied, in that regard, on s. 3(4) of the 2011 Act and Regulation 13 of the AIE Regulations.

Held by the Court that: (1) it was not necessary for it to consider whether a difference in approach was to be discerned between the provisions of the 2011 Act and those of the AIE Regulations, as Right to Know did not meet the test in either the 2011 Act or the AIE Regulations, if the latter creates a lower threshold; (2) the fact that a question considered in an appeal is a matter of general public importance cannot of itself be a basis on which a determination on liability for costs could be made, as most, if not all, appeals to the Court could be said to fall into that category by reason of the constitutional threshold to grant of leave to appeal (Minister for Communications, Energy and Natural Resources v Wymes [2021] IESC 63); (3) whilst there was no significant body of case law on the role of the President or the Council of State, such case law as did exist was clearly inconsistent with the case made by Right to Know; (4) the appeal was decided primarily on the view of the Court on the meaning and scope of the Presidential immunity, and this point did not play a large part in the oral argument or written submissions of Right to Know in the appeal; (5) the issue of whether the President is a “public authority” was identified by the Court itself in its determination granting leave to appeal ([2021] IESCDET 90) as Right to Know did not identify that as a separate issue; (6) the proceedings did not involve constitutional rights touching on sensitive aspects of the human condition as envisaged in Collins v Minister for Finance [2014] IEHC 79; (7) this was not in any sense a “lead case”, and reliance on Sherry v Minister for Education and Skills [2021] IEHC 224 was therefore misconceived; and (8) Right to Know had the benefit of a costs order which was capable of being enforced, and this would meet its arguments regarding the deterrent effect of it obtaining no contribution to its costs in litigation in which it had no personal interest, and in which it conducted litigation as a recognised NGO in the area of information law, however this in itself was not a reason to award costs in its favour (An Taisce v An Bord Pleanála [2022] IESC 18).

The Court held that no order for the costs in the...