Although Judges have full discretion, the general rule in court cases in Ireland is that the loser pays the winner's legal costs.
The 2010 Planning Act radically changed this rule for judicial review proceedings relating to decisions that give effect to the Environmental Impact Assessment Directive, the Strategic Environmental Assessment Directive and the Integrated Pollution Prevention and Control Directive. The new default rule for these legal proceedings is that each party must pay its own costs, subject to four very limited exceptions. The new costs rule is currently being challenged in proceedings before the Irish Commercial Court.
The 2011 Act extends the costs rule that each party must bear its own costs, and the exceptions, to certain other environmental cases.
The Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters (the "Aarhus Convention") lays down rules to promote citizens' involvement in environmental decision-making. Under the Aarhus Convention, and the European rules that implement it, Ireland is obliged to allow the public to appeal decisions and ensure any appeal procedure is "fair, equitable, timely and not prohibitively expensive".
The Minister has stated, on the advice of the Attorney General, that in order for Ireland to ratify the Aarhus Convention, it was necessary to: (a) amend the costs rule introduced by the 2010 Planning Act; and (b) introduce a provision limiting the costs of environmental court cases.
Ireland's response to limiting the costs of environmental court cases – the new costs rule
The 2011 Act extends the rule, that each party has to pay its own costs, to apply to environmental court cases where a person institutes proceedings to ensure compliance with environmental licences, or permits, or in respect of a breach of a licence, or permit, if the circumstances have caused, or are likely to cause, damage to the environment.
For example, injunction proceedings to ensure compliance with:
an IPPC licence; a waste licence; a waste collection permit; a trade effluent licence; a foreshore licence; a dumping at sea permit; an exploration licence; and others, are all now subject to the new rule that each party must bear its own costs.
The new rule that each party must pay its own legal costs does not apply to all or any part of court...