Stella Coffey v Environmental Protection Agency

• Jurisdiction: Ireland
• Judge: Denham C.J.
• Judgment Date: 25 June 2014
• Neutral Citation: [2013] IESC 31
• Court: Supreme Court
• Docket Number: [S.C. Nos. 451, 453, 454, 455, 456, 457, 458, 459, 460, 461, 462, 464 & 498 of 2012]
• Date: 25 June 2014

Coffey & Ors v Environmental Protection Agency & Teagasc

In the matter of appeals to find a way that the appellants can take a legal challenge which is protected from prohibitively expensive legal costs 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 Kieran and Dymphna Maher

Appellants

and

Environmental Protection Agency

Respondent

and

Teagasc

Notice Party

[2013] IESC 31

Denham C.J.

Fennelly J.

McKechnie J.

Appeals No. 451, 453, 454, 455, 456, 457, 458, 459, 460,461, 462, 464, 498/12

THE SUPREME COURT

Practice & procedure – Parties – Representation of – Costs order sought on ex parte basis against respondent

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.

In an earlier appeal heard by the Supreme Court ([2013] IESC 11; [2013] 2 JIC 2601 the Supreme Court had refused permission for a third party to act as the appellants" representative. Considering the main appeal, Denham CJ listed the main point to be considered was whether the High Court was correct to decline to make a costs order ex parte. Dismissing the appeal, Denham CJ stated that notice of proceedings or potential orders was a basic requirement of the fair administration of justice. The High Court had acted correctly to refuse to grant the costs order sought. Denham CJ also noted the recent decision in the CJEU of R (Edwards) v Environmental Agency (Case C-260/11).

NO2GM LTD v ENVIRONMENT PROTECTION AGENCY UNREP HOGAN 28.8.2012 2012/34/10023 2012 IEHC 369

O'CONNOR v ENVIRONMENTAL PROTECTION AGENCY UNREP HOGAN 28.8.2012 2012/34/10196 2012 IEHC 370

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

ENVIRONMENTAL PROTECTION AGENCY ACT 1992 S87(10)

COFFEY, IN RE UNREP BIRMINGHAM 14.08.2013 (TRANSCRIPT NOT AVAILABLE)

R (EDWARDS) v ENVIRONMENT AGENCY CASE NO C-260/11 2013 1 WLR 2914 2013 3 CMLR 18

1 Judgment delivered the 25th day of June. 2013 by Denham C.J.

2 Judgment delivered by Denham CJ [Nem diss] [2013] IESC 31

3 1. The thirteen appellants in these appeals brought identical applications ex parte to the High Court seeking an order. In the proceedings brought on behalf of Stella Coffey the order sought was described as including:-

"A NOT PROHIBITIVELY EXPENSIVE ORDER FOR A HEARING ON NOTICE for a Not Prohibitively Expensive Order (NPE Order) (whereby all parties that partake in that hearing will bear their own costs, save for the applicant where a limit of less than the expected own cost is sought)."

4 In other appeals the order is described shortly as:

"A NOT PROHIBITIVELY EXPENSIVE ORDER (NPE Order)."

5 2. The appeals to this Court were presented ex parte.

6 3. There has already been a judgment of this Court in relation to these cases. On the 11 ^th December, 2012 this Court declined the applications of the thirteen appellants that they be represented on their appeals by Mr. Percy Podger. On the 26 ^th February, 2013, in a judgment delivered by Fennelly J. this Court gave its reasons for that decision.

7 4. On the 11 ^th December, 2012, when stating that it would not hear Mr. Percy Podger representing the appellants, the Court indicated that it would hear any individual appeal that day, or, if any appellant wished, the Court could consider their appeal on the papers. The appeals were adjourned.

8 5. After delivery of the judgment in February, a date was given for the hearing of the appeals, being the 14 ^th May, 2013. On the 2 ^nd May, 2013, the appellants and Mr. Percy Podger appeared in the Management List and all requested that the Court hear the appeals on the papers. In the special circumstances of the case, the Court decided to consider these appeals on the papers, and the appellants were so informed by letter of the 8 ^th May, 2013.

9 6. Each of the thirteen applications to the High Court were identical, and based on identical information, and resulted injudgments of the High Court. Birmingham J. delivered judgment in Stella Coffey's application on the 14 August, 2012; Hedigan J. delivered judgment in the application of Dymphna Maher on the 22 ^nd October, 2012; and Hogan J. delivered judgment in the remaining eleven applications on the 28 ^th August, 2012.

10 7. In his judgments of the 28 ^th August, 2012, Hogan J. gave a similar analysis in each case. Thus, for example, in the application of Richard Auler, the learned High Court judge described the situation thus:-

11 i "(i) On the 25 ^th July, 2012 the Environment Protection Agency ( EPA) made a decision in the exercise of the powers conferred on it by the Genetically Modified Organisms (Deliberate Release) Regulations 2003 (S.I. No. 500 of 2003) granted a consent to Teagasc, Oak Park, County Carlow to carry out the deliberate release of certain genetically modified potato lines subject to certain conditions. Mr. Auler objects to this decision of the EPA and he has indicated to me that he is desirous of challenging the validity of this order, albeit that no proceedings have yet been commenced by him.

12 (ii) In this application Mr. Auler was represented by Mr. Percy Podger, who as he freely admitted to me, is neither a solicitor or counsel. As a concession and a courtesy to the applicant, I permitted Mr. Podger to be heard, but I express no view as to whether he was lawfully entitled to represent Mr. Auler in this manner, whether by virtue of being a McKenzie friend or otherwise. This judgment is but one of a number of similar applications moved by Mr. Podger on the same day and in respect of which he requested separate judgments

13 (iii) One immediate complication for Mr. Auler is that s. 87(10) of the Environmental Protection Agency Act 1992 (as inserted by s. 15 of the Protection of the Environment Act 2003) provides that:

14 'A person shall not by any application for judicial review or in any other legal proceedings whatsoever question the validity of a decision of the Agency to grant or refuse a licence or revised licence (including a decision of it to grant or not to grant such a licence on foot of a review conducted by it of its own volition) unless the proceedings are instituted within the period of 8 weeks beginning on the date on which the licence or revised licence is granted or the date on which the decision to refuse or not to grant the licence or revised licence is made'.

15 (iv) It would appear therefore that any such legal proceedings would have to be commenced by 18 ^th September, 2012 if the eight week period as defined is to be complied with. I might add that this Court has no jurisdiction to stay the operation of that eight week period contrary to what was urged on behalf of Mr. Auler. In other words, any person wishing to challenge the decision of the Agency must do so within the eight weeks and this Court has no jurisdiction or power to suspend or extend that time period.

16 (v) This is the general background to the present application which, to say the least, is somewhat unusual. The gist of the application is that this Court should declare on an ex ante and ex parte basis that Mr. Auler is entitled to have what is described as a not prohibitively expensive cost order. The background to this application lies in Article 9(4) of the Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters of 25 June 1998 ('the Aarhus Convention'). This is a United Nations Convention which Ireland ratified on the 20 ^th June, 2012.

17 (vi) Article 9(4) of the Aarhus Convention requires that the procedures for challenging the validity of certain administrative decisions affecting the environment:

18 'shall provide adequate and effective remedies, including injunctive relief as appropriate and be fair, equitable, timely and not prohibitively expensive'.

19 (vii) Article 9(2) stipulates that members of the public shall have the right to challenge 'the substantive and procedural legality of any decision, act or omission subject to the provisions of Article 6'. Article 6 provides that each party to the Convention:

20 a '(a) shall apply the provisions of this article with respect to decision on whether to permit proposed activities listed in annex 1;

21 (b) shall, in accordance with its national law, also apply the provisions of this article to decisions on proposed activities not listed in Annex I which may have a significant effect on the environment. To this end, Parties shall determine whether such a proposed activity is subject to these provisions.'

22 (viii) I should just observe at this point that it would not appear that the grant of a licence for the release of genetically modified plants is directly within the scope of Annex 1, a point to which I shall return.

23 (ix) Mr. Podger appeared to think that an act of ratification was sufficient in itself to make the Aarhus Convention part of Irish domestic law. This, however, is not the case for two reasons. First, Article 20(3) of the Convention provides that so far as each State which subsequently ratifies the Convention:

24 '... shall enter into force on the ninetieth day after the date of deposit by such State or organization of its instrument of ratification, acceptance, approval or accession'.

25 (x) This means,...