The Commissioner for Environmental Information v Coillte Teoranta

• Jurisdiction: Ireland
• Judge: Ms. Justice Niamh Hyland
• Judgment Date: 26 May 2023
• Neutral Citation: [2023] IEHC 327
• Court: High Court
• Docket Number: Record No. 2021/242MCA

In the Matter of Article 12(9)(A) of the Access to the Information on the Environment Regulations 2007–2019

Between

The Commissioner for Environmental Information

Applicant

and

Coillte Teoranta

and

People Over Wind

Respondents

and

Minister for Environment, Climate and Communications

Notice Party

[2023] IEHC 327

Record No. 2021/242MCA

THE HIGH COURT

Costs – Case stated – Freedom of information – Second respondent seeking costs – Whether costs should follow the event

Facts: A case stated arose because of an application by the second respondent, People Over Wind (POW), for documents from the first respondent, Coillte Teoranta (Coillte), under the European Communities (Access to Information on the Environment) Regulations (the AIE Regulations). Coillte refused access and the matter was appealed to the applicant, the Commissioner for Environmental Information (the Commissioner). Questions were referred to the High Court. Two lines of inquiry, raised by the Commissioner on the one hand and Coillte on the other, and argued by all the parties at the hearing, constituted the issues in the case that Hyland J had to decide. In relation to the second issue i.e., whether Coillte could come under the freedom of information (FOI) umbrella, whether as a FOI body or on a stand-alone basis, were comprehensively determined against Coillte. The thesis first raised by the Commissioner i.e., that the protection afforded under the Freedom of Information Act 2014 might not be protection of a species of confidentiality at all, was rejected. POW applied for their costs in the proceedings. POW looked for its costs in the first instance against Coillte and looked to the Commissioner to pay any costs that Coillte was not liable for. Both Coillte and the Commissioner opposed the application against them for costs. Arguments were raised by Coillte as to why the Commissioner should bear the costs of the entire proceedings and the Commissioner explained why he did not agree.

Held by Hyland J that costs should follow the event in the normal way in relation to the second issue, and a costs order should be made against Coillte for 50% of POW’s costs on the basis that that issue took roughly half of the Court time. Hyland J rejected the position of Coillte that the presumptive position is the Commissioner should bear the costs of a case stated; that position was not consistent with case law that suggested that cases stated are not to be treated differently insofar as costs are concerned. Hyland J held that such an approach would act as a disincentive to a Commissioner in stating a case and is clearly contrary to the approach identified in Regulation 12 of the AIE Regulations, which makes it clear that an applicant’s costs can be ordered to be paid by the public authority in question i.e. the body against whom the request is made. Hyland J held that the Commissioner should not be treated as being immunised from a costs order against him, either generally, or because in the proceedings he took what he described as a neutral position. Hyland J held that the issue in relation to whether the 2014 Act exemption represented true confidentiality was an issue entirely generated by the Commissioner, first in correspondence and then in the questions referred to the Court. Hyland J noted that the Commissioner decided he required the assistance of the Court to resolve that issue but it was not an issue raised by POW; nor was it an issue that would have come before the Court on the basis of Coillte’s refusal to provide the documents had the Commissioner not specifically raised it. Although POW took up the point and made its own submissions on it, and was unsuccessful, in the sense that POW took a particular position that was not adopted by the Court, nonetheless Hyland J held that it was not correct to characterise this as an issue generated by POW.

Hyland J held that the correct approach was to require the Commissioner to pay the costs of the resolution of a question that it required to be answered. While the Commissioner was not advocating for a particular resolution at the hearing and therefore he could not be said to have “lost” the issue in the traditional sense of the word, Hyland J held that absent the raising of the issue by him the issue would not have been before the Court. In those circumstances, Hyland J considered that the costs incurred by POW in responding to those questions raised on that issue should be borne by the Commissioner. Hyland J made a costs order directing the Commissioner to pay 50% of the costs of POW.

Costs awarded to second respondent.

EX TEMPORE JUDGMENT of Ms. Justice Niamh Hyland delivered 26 May 2023

Introduction

1 This is an application by People Over Wind (“POW”) for their costs in these proceedings. None of the other parties are seeking their costs. POW is looking for its costs in the first instance against Coillte and looking to the Commissioner to pay any costs that Coillte is not liable for. Both Coillte and the Commissioner oppose the application against them for...