Volkmar Klohn v an Bord Pleanála

• Jurisdiction: Ireland
• Judge: Mr. Justice Clarke
• Judgment Date: 03 August 2021
• Neutral Citation: [2021] IESC 51
• Docket Number: [Appeal No: 314/11 & 482/11]
• Court: Supreme Court

Between/

Volkmar Klohn

Appellant

and

An Bord Pleanála

Respondent

and

The General Council of the Bar of Ireland, The Law Society of Ireland and the Attorney General

Notice Parties

[2021] IESC 51

Clarke C.J.

O'Donnell J.

Dunne J.

[Appeal No: 314/11 & 482/11]

THE SUPREME COURT

Costs – Prohibitively expensive proceedings – Damages – Appellant seeking costs – Whether the Supreme Court could award damages to the appellant for breach of his rights under European Union law

Facts: These proceedings, concerned with the question of whether the process for conducting litigation in certain environmental fields is prohibitively expensive, generated hearings both in Ireland and in Luxembourg. The Supreme Court had to reach final conclusions on the substantive appeal in light of the judgment of the CJEU on the first reference. It was agreed that the original determination of the Taxing Master must be overturned and that the Court should itself address the question of the amount, if any, of costs which should be awarded. Thereafter, it appeared to Clarke CJ that, as a result of the written submissions and the oral argument, there were four issues between the parties. The first concerned the regard which the Court should have, in assessing whether the proceedings as a whole were not prohibitively expensive from the perspective of the appellant, Mr Klohn, to the costs paid by Mr Klohn to his own lawyers. There was an implicit suggestion that an order ought be made providing for the payment of some of Mr Klohn’s own costs, which order, it was said, would be required so as to render the overall proceedings not prohibitively expensive. There was a contention that the Court could award damages to Mr Klohn for breach of his rights under European Union law, which breach was said to have occurred by the making of the original order for costs against Mr Klohn and its assessment by the Taxing Master in a sum of the order of €86,000. Finally, there were issues concerning the costs of the appeal itself.

Held by Clarke CJ that it was agreed on behalf of both Mr Klohn and the respondent, An Bord Pleanála (the Board), that, in light of the judgment of the CJEU in the first reference in this appeal, the decision of the Taxing Master, assessing the costs which Mr Klohn was to pay to the Board at €86,000, had to be overturned. Having regard to the fact that both parties urged that the Court should take such a course of action, Clarke CJ proposed that the Court should itself measure the amount of costs. Holding that those costs should be assessed in a way which rendered the overall costs of the proceedings, including the costs which Mr Klohn incurred in his own representation, as being not prohibitively expensive in accordance with the jurisprudence of the CJEU, Clarke CJ proposed that those costs should be measured in the sum of €1,250. Clarke CJ did not consider that any question of the Board having to pay a sum to Mr Klohn in respect of his own costs was before the Court on this appeal. Clarke CJ held that this question was finally determined against Mr Klohn when the original order of McMahon J in the underlying environmental proceedings was made. Clarke CJ held that the question was res judicata and, in accordance with the answer given by the CJEU to the third question posed in the first reference by the Court, European Union law does not require such matters to be reopened. Clarke CJ did not consider that any potential claim for damages under European Union law was before the Court. Clarke CJ considered that Mr Klohn was entitled to the full costs of the appeal to the Court (including the costs associated with the two references to the CJEU), was also entitled to the costs of the review of taxation before the High Court and that the Board should be liable for all of those costs.

Clarke CJ proposed that the Court should allow the appeal and substitute the sum of €1,250 for the assessment of the Taxing Master under review. Clarke CJ also proposed that the Court should award Mr Klohn the full costs of this appeal.

Appeal allowed.

Judgment of Mr. Justice Clarke, Chief Justice, delivered the 3rd of August, 2021.

1. Introduction

1.1 This case has had an extremely long history as can be seen from the fact that there have already been three judgments of this Court (see, Klohn v. An Bord Pleanála & ors [2017] IESC 11, Klohn v. An Bord Pleanála & Anor [2019] IESC 66, and Klohn v. An Bord Pleanála [2021] IESC 30), together with two judgments of the Court of Justice (“CJEU”), (see, Klohn v. An Bord Pleanála (Case C-167/17) (ECLI:EU:C:2018:833) and VK v. An Bord Pleanála (Case C-739/10) (ECLI:EU:C:2021:185))

1.2 It is worth commenting that it is unfortunate that proceedings which are concerned with the question of whether the process for conducting litigation in certain environmental fields is prohibitively expensive should themselves have generated so many hearings both in Ireland and in Luxembourg, with the consequence of greatly adding to costs. However, each of those steps was necessitated by virtue of uncertainty about the interaction of national and European Union law in this area as demonstrated, for example, by the fact that the CJEU in its first judgment differed somewhat from the opinion of the Advocate General on that reference, with the Court, this time in agreement with the Advocate General, in the second reference distinguishing the position concerning representation by a lawyer who is not qualified in a relevant member state, without an accompanying national lawyer, as between Ireland and some other jurisdictions.

1.3 Be all that as it may, the Court now has to reach final conclusions on the substantive appeal in light of the judgment of the CJEU on the first reference. This judgment should be read in conjunction with, in particular, the judgment of this Court which led to the first reference, for the way in which the issues arose on the original hearing of the appeal in this case are set out in full in that judgment.

1.4 Written submissions were exchanged between the parties and an oral hearing followed. It seems appropriate to start, therefore, by referring to the issues which appeared to lie between the parties as a result of that process.

2. The Issues

2.1 There was, in my view, a relatively significant measure of agreement between the parties which it is appropriate to record. Counsel for the respondent (“the Board”) accepted that Mr. Klohn's appeal to this Court must be allowed. It is clear from the judgment of the CJEU on the first reference in these proceedings that the costs of Mr. Klohn, which were ordered against him in the underlying environmental proceedings which he lost, must be assessed on a not prohibitively expensive (“NPE”) basis. It was also accepted that the costs determined by the Taxing Master as being due by Mr. Klohn on foot of the original order for costs made by the High Court in those underlying proceedings, would not meet the test for NPE as developed in the jurisprudence of the CJEU. Thus it was accepted that the assessment of the Taxing Master must be overturned. It must be recalled that Mr. Klohn sought a review of the original decision of the Taxing Master of June 24, 2010, which fixed those costs at a sum of the order of €86,000. The High Court described Mr. Klohn as having sought an order of certiorari but, in any event, that Court declined to alter the assessment of the Taxing Master and Mr. Klohn appealed to this Court. It is accepted that the decision of the Taxing Master must now be overturned.

2.2 The next issue is as to whether it would be appropriate for this Court, in the particular circumstances of this case, to itself determine what, if any, level of costs ought be awarded against Mr. Klohn, so as to meet the NPE criteria as identified in the jurisprudence of the CJEU. Ordinarily, the order which would be made in circumstances such as this, where a decision of an expert person or body is overturned, would be that the matter would be remitted back to the person or body concerned so as to enable an appropriate decision to be made in accordance with the principles identified by the Court in overturning the decision concerned. It follows that the ordinary order which might be made in a case such as this would be to remit the matter back to the Taxing Master unless this Court felt that it can deal with the matter itself.

2.3 However, there are particular circumstances which, in my view, justify this Court in addressing the quantum of costs itself. First, both parties agreed that the Court should take that course of action. It should be said that this was a most sensible approach on both sides. Remitting the matter back would further delay this process and could only add further to the costs of what already must have been most expensive litigation. Given the irony that these proceedings are about ensuring that litigation of a certain category is not prohibitively expensive, incurring additional costs, if same could be avoided, would make perfect sense.

2.4 To that practical consideration can be added the fact that the normal reason why matters are remitted back in appropriate cases is that it is the body concerned, rather than the courts, which have jurisdiction to make orders or decisions in the area in question. In many cases a court, quashing a measure adopted by a lower court or administrative body, would not have jurisdiction to make a decision of the type which was successfully challenged. For example, a court cannot grant or refuse a planning permission. If a court were to quash a decision granting planning permission, it cannot itself make a decision refusing a permission, for that is a matter within the competence of the relevant planning authorities. It may be that a consequence of the decision of the court is that the planning authority in question might have little option but to refuse permission, but...