Sabrina Joyce Kemper v an Bord Pleanála, Ireland and The Attorney General
| Jurisdiction | Ireland |
| Judge | Mr. Justice Allen |
| Judgment Date | 21 January 2022 |
| Neutral Citation | [2022] IEHC 25 |
| Docket Number | [2020 No. 22 JR] |
| Court | High Court |
and
[2022] IEHC 25
[2020 No. 22 JR]
THE HIGH COURT
JUDICIAL REVIEW
JUDGMENT of Mr. Justice Allen delivered on the 21st day of January, 2022
This is my judgment on the question of the costs of a long running judicial review of a decision made by An Bord Pleanála (“ the Board”) on 11th November, 2019 under s. 37G of the Planning and Development Act, 2000 to grant permission to Irish Water for the development of a large strategic infrastructure project called the Greater Dublin Drainage Project.
The applicant contends that one or other of the Board and the State respondents should be ordered to pay all of her costs. The Board acknowledges that the applicant has been partly successful against it and so should have some of her costs. The State respondents submit that, as far as they are concerned, the applicant was unsuccessful and that as between the applicant and those respondents there should be no order as to costs.
For the reasons given in a long judgment delivered on 24th November, 2020 ( [2020] IEHC 601) I concluded that the decision of the Board had been shown by the applicant to have been legally flawed and that it must be quashed.
The applicant had sought judicial review of the Board's decision on a very large number of grounds which called for an examination of the pre-application consultation between May, 2008, when Fingal County Council published a Strategic Assessment for the Greater Dublin Strategic Drainage Scheme and 20th June, 2018 when the planning application was made; the appointment of the Inspector and Board members who dealt with the application; the approach by the Board to the assessment of the proposed development; the public and statutory consultation, including the engagement between the Board and the Environmental Protection Agency; and the reasons given for the decision. Besides, the applicant sought to make the case that there had been a failure on the part of the State to correctly transpose Article 2 of the EIA Directive into Irish national law.
Following close case management and the filing of comprehensive written submissions the application for judicial review was heard by way of a telescoped hearing over three weeks in July, 2020.
The hearing, which had been fixed for ten days, was interrupted at the start of what was to have been the third day when counsel for the applicant indicated that he wished to make a recusal application. On what was to have been the fourth day of the hearing I heard the recusal application and the submissions of the respondents and notice party in relation to it. For the reasons given in an ex tempore judgment late that afternoon I refused to recuse myself and resumed the substantive hearing on the following day. On 23rd September, 2020 I delivered a written judgment ( [2020] IEHC 477) in which I reprised and slightly elaborated on the reasons I had given for declining to recuse myself.
The applicant appealed to the Court of Appeal against the refusal of the recusal application. The appeal was assigned an early hearing date for 26th November, 2020 but was not pursued by the applicant.
My decision on the substantive application was that the applicant had made out her case on one ground, only, which was that the Board had failed to correctly identify and comply with the obligation imposed on it by art. 44 of the Waste Water Discharge (Authorisation) Regulations, 2007 as amended by the Waste Water Discharge (Authorisation) (Environmental Impact Assessment) Regulations, 2016 to seek the observations of the Environmental Protection Agency on the likely impact of the proposed development on waste water discharges.
Following the delivery of my judgment I adjourned the matter for mention to allow the parties an opportunity to consider it. The first question to be addressed was whether any of the parties wished to make an application for leave to appeal. None of them did.
The next question to be decided was whether, and if so the basis upon which, the matter might be remitted to the Board. That question was argued on 16th March, 2021 and was the subject of a further a written judgment delivered on 27th April, 2021 ( [2021] IEHC 281). In very broad terms, the Board and Irish Water submitted that the single flaw in the process identified by the judgment of 24th November, 2020 could be addressed and remedied by remitting the matter for reconsideration by the Board at the point at which the process had been shown to have gone wrong. The applicant submitted that the decision of the Board should simply be quashed. For the reasons then given, I found that the decision of the Board dated 11th November, 2019 should be quashed and that Irish Water's application dated 20th June, 2018 should be remitted to the Board for reconsideration from the point at which the Inspector's report was submitted to the Board. As against the State respondents, the judicial review application was dismissed.
The question of the costs of the proceedings was first listed for hearing on Friday 25th June, 2021, with directions for the exchange of written submissions in the meantime. In accordance with the court's directions, the applicant's submissions were filed on 1st June, 2021, the State respondents' on 18th June, 2021 and the Board's on 22nd June, 2021.
One of the arguments made in the applicant's written submission was that she was facing a substantial “financial burden” arising from the proceedings if she could not recover her costs in full. In their written submissions the respondents had countered that there was no evidence before the court as to the cost of the proceedings to the applicant, specifically that there was no evidence that a limited order for costs would have the consequence that the proceedings would be prohibitively expensive for the applicant. It was suggested in the Board's submissions, indeed, that the court might infer from the fact that the applicant was represented by solicitors and two counsel that she has been able to secure legal services on a pro bono or contingency basis, or similar.
Counsel for the applicant could scarcely credit that the respondents were serious in their objection, but when it was clear that they were, sought an adjournment to file an affidavit setting out her means and addressing her liability for costs. In principle, the applicant ought not to have sought to make an argument for which there was no evidential basis and in practical terms she could and should have addressed the deficit when it was pointed out in the respondents' submissions but the court, with considerable reluctance, acceded to the application and adjourned the hearing for which the respondents and the court had prepared.
On 6th July, 2021 the applicant swore a short affidavit in order “to set out my own financial means in so far as same applies to the issue of costs”. The applicant deposed that she had instructed her solicitors in December, 2019 and that her solicitors had briefed counsel on her behalf. She deposed that she was furnished with a s. 150 notice – that is a notice under s. 150 of the Legal Services Regulation Act, 2015 – in relation to fees and charges and:-
“… was advised in clear terms of my liabilities and the potential costs of judicial review proceedings which might run for a number of days could be over €300,000 plus VAT at 23% and outlay. I say that this was an issue of great concern to me as I did not then, nor do I now have access to large sums of money to discharge such liabilities. I was however working at that time and there was considerable public support for my case which included some fundraising mostly by crowd funding through the internet.”
The applicant went on to describe her family and employment circumstances, including the impact on her employment, and on her fundraising plans, of the COVID-19 restrictions. She has sworn that she is fully liable for the costs of the proceedings, which run to many hundreds of thousands of euro, but does not have the means to discharge them, and that she does not have the means to pay any shortfall in her legal costs. The applicant has exhibited a statement released by the compliance committee of the United Nations Economic and Social Council on 2nd September, 2020 on the application of the Aarhus Convention during the COVID-19 pandemic and the economic recovery phase, but not her s. 150 notice.
While the applicant referred to her fundraising, she did not disclose how much had been raised. That deficit was partly addressed by an affidavit filed on behalf of the State respondents which exhibited a printout from one crowdfunding website which suggested that €42,247 had been raised of a target of €90,000. The printout indicates that any unused legal funds would be distributed to four charities, which the webpage suggests would be impacted by the Greater Dublin Drainage Project going ahead.
The applicant's written submissions recall that the application for judicial review was first moved in the judicial review list on 14th January, 2020, when it was transferred to the Strategic Infrastructure List, where it was managed over the following months. Notably, when the matter first appeared in the SID list on 23rd January, 2020 Simons J. directed that the leave application should be made on notice, and that the applicant should canvas the views of the respondents and Irish Water as to the possibility of a telescoped hearing. When the case next came into the list on 6th February, 2020 the respondents and Irish Water confirmed that the proceedings were subject to the costs rule under s. 50B of the Planning and Development Act, 2000, and consented to a telescoped hearing.
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Joyce-Kemper v an Bord Pleanala
...IEHC 281, Allen J decided to remit the matter back to the first respondent, An Bord Pleanála. In Joyce-Kemper v An Bord Pleanála (No. 4) [2022] IEHC 25, Allen J awarded 25% of the cost to the applicant against the board minus the costs of the recusal and remittal applications, with no order......