Stella Coffey and Others v Birmingham J. and Others

• Jurisdiction: Ireland
• Judge: Mr. Justice Fennelly
• Judgment Date: 26 February 2013
• Neutral Citation: [2013] IESC 11
• Court: Supreme Court
• Docket Number: APPEALS RECORD Nos.: 451, 453, 454, 455, 456, 457, 458, 459, 460, 461, 462, 464, 498/12
• Date: 26 February 2013

Coffey & Ors, In Re

In the Matter of Applications for Orders in Relation to Costs in Intended Proceedings by

STELLA COFFEY, NO2GM LTD., DEREK BANIM, THOMAS O'CONNOR, RICHARD AULER, THERESA CARTER, DAVID NOTLEY, MICHAEL HICKEY, MALCOLM NOONAN, GAVIN LYNCH, DANNY FORDE, ENDA KIERNAN AND DYMPHNA MAHER.

APPELLANTS:

[2013] IESC 11

Denham C.J.

Fennelly J.

McKechnie J.

APPEALS RECORD Nos.: 451, 453, 454, 455, 456, 457, 458, 459, 460, 461, 462, 464, 498/12

THE SUPREME COURT

Practice & procedure – Parties – Representation of – Application by third party to represent appellants – Third party not legally qualified

Facts: The appellants sought to challenge the decision of the Environment Protection Agency to grant permission to grow genetically modified crops in County Carlow. As part of that challenge they sought a ‘Not-Prohibitively Expensive Costs Order’ pursuant to the Aarhus Convention of 1998. The High Court had declined to make such an order, considering it unfair to the respondent as the application was made without notice.

The substantial appeal from that decision was yet to be heard, but the applicant now sought permission to act as the appellants” representative, notwithstanding his lack of qualification to do so.

Held by Fennelly J (the other Justices concurring), that the applicant did not seek to act as a McKenzie friend to the appellants, but rather an advocate. He sought the full rights of that role without any limitations or the responsibilities that would normally apply to that role.

The limitation on the rights of audience was to ensure the proper administration of justice was carried out and the public interest was served. To grant the applicant permission to act as representative would undermine the full and justified training and educational requirements of the legal professions. No exceptional circumstances had been pleaded which would justify taking such a step, and the application would therefore be dismissed.

The appeal was therefore dismissed.

GENETICALLY MODIFIED ORGANISMS (DELIBERATE RELEASE) REGS SI 500/2003

MCKENZIE v MCKENZIE 1970 1 P 33 1970 3 WLR 472

COLLIER v HICKS 1831 2 B & AD 663

D (R) v MCGUINNESS 1999 2 IR 411

SOLICITORS (IRELAND) ACT & O'CONNOR, IN RE 1930 IR 623

COURTS ACT 1971 S17

B (R) v S (A) 2002 2 IR 428

ABSE & ORS v SMITH 1986 2 WLR 322

BATTLE v IRISH ART PROMOTION CENTRE LTD 1968 1 IR 252

TRITONIA LTD v EQUITY & LAW LIFE ASSURANCE SOCIETY 1943 1 AC 584

GJ MANNIX LTD, IN RE 1984 1 NZLR 309

COFFEY v TARA MINES LTD 2008 1 IR 436

STATUTE OF THE COURT OF JUSTICE 2008 ART 19

Mr. Justice Fennelly

Judgement delivered by Fennelly J. [nem diss]

1 This judgment provides the reasons for the decision of the Court made at the hearing of these thirteen appeals on 11^th December 2012 declining the application of the thirteen appellants to be permitted to be represented at the hearing of the appeal by Mr. Percy Podger or, put otherwise, the application of Mr. Podger to be permitted to appear for and to argue the appeals as the representative or advocate of the appellants.

2 For the purpose of considering that issue, the Court has heard Mr. Podger and permitted him to argue that point and that point only. Having heard him, the Court ruled that it would not hear Mr. Podger as representative of the appellants. It informed the appellants that it would hear them or any of them who wished to present the appeal on his or her own behalf. The Court adjourned briefly to enable them to consider the position. At the resumed hearing, none of the appellants wished to do so. However, Mr. Podger announced that he had, during the period of the adjournment of the hearing, been made a member of the appellant company, No2GM Ltd, and that he proposed to represent it. The Court declined to hear him as representative of the company.

3 In this judgment, I give the reasons for ruling that the Court should not hear Mr. Podger as advocate or representative of the appellants.

4 The situation is procedurally singular, if not unique. The appeals, like the applications in the High Court, are presentedex parte, even though the appellants applied to the High Court and are now applying to this Court for orders potentially adversely affecting the interests of the respondents to their intended applications for judicial review but without hearing the latter. Thus, the appellants and Mr. Podger on their behalf do not even name the affected bodies (the Environment Protection Agency and Teagasc) in the titles of their applications in the High Court or in their notices of appeal to this Court.

5 The appellants are: Stella Coffey, No2GM Ltd., Derek Banim, Thomas O'Connor, Richard Auler, Theresa Carter, David Notley, Michael Hickey, Malcolm Noonan, Gavin Lynch, Danny Forde, Enda Kiernan and Dymphna Maher. It will be noted that one of the appellants is a company, in fact a company limited by guarantee. The papers submitted to the High Court and supporting submissions for each of the 13 appellants are, in effect, identical and clearly prepared by the same person. It is clearly Mr. Podger who is co-ordinating the applications for judicial review which the appellants apparently wish to commence in the High Court.

6 The appeals are taken against judgments of the High Court delivered respectively by Birmingham J. on 14^th August (one case), Hogan J. on 28^th August 2012 (eleven cases) and Hedigan J. on 22^nd October 2012 (one case).

7 It appears that each of the appellants wishes to seek judicial review of a decision made on the 25th July, 2012 by the Environment Protection Agency (" EPA") in the exercise of the powers conferred on it by the Genetically Modified Organisms (Deliberate Release) Regulations 2003 (S.I. No. 500 of 2003) granting a consent to Teagasc, Oak Park, County Carlow to cany out the deliberate release of certain genetically modified potato lines subject to certain conditions. None of the applicants has, to date, in fact made any application to the High Court for leave to apply for judicial review. In fact, they did not even place before the High Court any material by way of evidence or legal argument providing grounds for judicial review of the EPA decision. As Birmingham J. said, in the case of Stella Coffey,"the papers address only the request for a not prohibitively expensive order."

8 The appellants each applied to the High Court for what they describe as a "Not-Prohibitively Expensive Costs Order." Each applicant is described on the face of the application as a "European citizen…… lacking sufficient resources."

9 The appellants base their application for a"Not-Prohibitively Expensive Costs Order" essentially on the Aarhus Convention on access to information, public participation in decision-making and access to justice in environmental matters done at Aarhus, Denmark, on 25 June 1998. That is a United Nations Convention, which was not ratified by Ireland until 20^th June 2012 though it had been ratified by the European Union in February 2005 and effect has been given to certain provisions in European Union Law.

10 The appellants allege that to proceed without the benefit of the claimed"Not-Prohibitively Expensive Costs Order " would render them financially incapable of continuing with the challenge against the EPA, and would leave them financially exposed should they be ultimately unsuccessful and have costs awarded against them.

11 The Aarhus Convention is the basis of the appellants' argument that costs incurred in challenging an environmental decision should not be"prohibitive." The appeals brought by the thirteen appellants against the substance of the High Court orders remain pending before this Court. This judgment does not deal with the correctness or otherwise of the High Court judgments or the merits of the appeals. For that reason, it is sufficient to state very briefly the effect of the High Court judgments.

12 None of the High Court judgments decided, on the merits, whether the court had jurisdiction to make what the appellants term a"not-prohibitively expensive costs order." Hogan J. raised issues concerning the status of the Aarhus Convention in Irish law and referred to case-law of the Court of Justice. He was of the view that further clarification would have to be sought from the Court of Justice. However, his decision was based, like those of Birmingham J. and Hedigan J., on the fundamental departure from fair procedures which would be involved in making a final order of that kind necessarily affecting an opposing party but without affording that party any opportunity to be heard. As Hogan J. expressed the matter:

"Since the making of a final order of the kind sought without notice to other parties actually or potentially affected by such order would infringe fundamental principle of fair procedures as understood by the Constitution, the European Convention of Human Rights and the EU Charter of the Fundamental Rights, I consider that I have no jurisdiction to make such an order. For those reasons, I must decline to grant the relief sought."

13 As I have emphasised, however, that is a matter for the substantive hearing of the appeals, which remain pending. I turn, therefore, to the question of Mr. Podger's representation of the appellants.

14 Each of the three judges heard Mr. Podger in the High Court. Hogan J. said, in the case of No2GM Ltd Mr. Podger had represented the applicants, though he had freely admitted that he was neither a solicitor nor counsel. The learned judge said that he had heard him "[a]s a concession and a courtesy to the applicant…" He added: "I express no view as to whether he was lawfully entitled to represent the company inthis manner, whether by virtue of being a McKenzie friend or otherwise."

15 Each of the...