Wiclow County Council v O'Reilly NO.5

• Jurisdiction: Ireland
• Court: High Court
• Judge: Mr. Justice Richard Humphreys
• Judgment Date: 19 July 2017
• Neutral Citation: [2017] IEHC 487
• Docket Number: [2008 No. 56SP]
• Date: 19 July 2017

[2017] IEHC 487

THE HIGH COURT

Humphreys J.

[2008 No. 56SP]

[2005 No. 89SP]

BETWEEN

BROWNFIELD RESTORATION IRELAND LTD.

PLAINTIFF

AND

WICKLOW COUNTY COUNCIL

DEFENDANT

AND

THE ENVIRONMENTAL PROTECTION AGENCY

NOTICE PARTY

AND

BETWEEN

WICKLOW COUNTY COUNCIL

PLAINITFF

AND

JOHN O'REILLY, BROWNFIELD RESOTRATION IRELAND LIMITED, RAYMOND STOKES, ANNE STOKES, SWALCLIFFE LIMITED TRADING AS DUBLIN WASTE, LOUIS MORIARTY, EILEEN MORIARTY, DEAN WASTE CO. LIMITED (IN RECEIVERSHIP), WILLIAM JOHN CAMPBELL, ANTHONY DEAN, UNA DEAN, SAMUEL J. STEARS

AND

ROCKBURY LIMITED

DEFENDANTS

AND

THE ENVIRONMENTAL PROTECTION AGENCY

NOTICE PARTY

(No. 5)

Environment, Construction and Planning – Practice & Procedures – Dumping of hazardous waste – Costs – O. 99 of the Rules of the Superior Courts – Departure from rule

Facts: The present proceedings concerned the issue of costs. The substantive issue related to the dumping of illegal hazardous waste by the local county council to the subject site. The second defendant in the second set of proceedings objected to that dumping and initiated appropriate proceedings against the council. The main issue was the distribution of costs between the parties in relation to two proceedings one of which had been struck down and the other was heard at length with three modular hearings.

Mr. Justice Richard Humphreys made an award of costs in favour of the second defendant in the second named proceedings subject to the condition that the costs of motion for costs and the costs for re-entry into the matter and the costs of eight days would be excluded. The Court held that in relation to the second proceedings, there would be no order as to the costs as the issue was neutral between the parties. The Court, however, awarded the costs of an application to the said council in which it was successful in relation to the second proceedings. The Court also awarded the costs to the council in relation to its application for filing a supplemental affidavit for the decisions in the run-up to exercising its powers under s. 56 of the Planning and Development Act, 2000. The Court awarded two-thirds of the costs to the council in relation to Module I of the second proceedings and one-third to the second defendant in the second proceedings. The Court awarded the costs in Module II to the said defendant as he had succeeded in that Module. The Court awarded the costs of Module III to the council as it was the winning party. The Court awarded the costs of the present application for the costs to the council as it had succeeded in its costs submission. The Court held that the costs under individual heading would include the reserved costs and all the costs would be taken into account for the purposes of set-off against the said second defendant.

RULING of Mr. Justice Richard Humphreys delivered on the 19th day of July, 2017

1 I am dealing now with Module IV of this matter which, having heard from the parties, is limited to the question of costs. The position is that costs are discretionary but generally follow the event pursuant to O. 99 of the Rules of the Superior Courts. That general rule may be departed from in appropriate circumstances, as set out in Dunne v. Minister for Environment [2008] 2 I.R. 775 and Grimes v. Punchestown Company Limited [2002] 4 I.R. 515. By virtue of Veolia Water U.K. plc v. Fingal County Council [2007] 2 I.R. 81, in complex cases where the winning party has not succeeded in all issues the court should consider whether to structure the order in such a way as to reflect matters such as the reasonableness of the conduct of the parties and their success or otherwise on particular issues.

2 This was a complex matter by any standards. Firstly, before O'Keeffe J. it was at hearing for 23 days. There was a further day on which judgment was given in an adjournment application resulting in an adjournment mid-trial. There were then eight further days dealing with discovery and a mistrial application. The matter was back before the court for a day regarding an order on that issue and on a later date regarding an order for costs, including costs of the adjournment application. In the second trial, which commenced in March, 2017, the matter has now been before me for 56 days so there is a total of 90 days accounted for, together with other mention dates not included in that list.

3 Mr. Peter Bland S.C. (with Mr. Michael O'Donnell B.L.) for Brownfield submits that in essence there is a public interest dimension in the case and that Brownfield has, as he puts it, done the State some service; which I accept to some extent but that is not an absolutely conclusive argument for full costs because, first of all, there were certain serious allegations and other matters that Brownfield chose to agitate and did not succeed on; and secondly, it is not a purely public interest case because Brownfield is a commercial entity seeking to protect its investment in the property, which of course it is quite entitled to do and I am not in any way criticising it for that. Having regard to all the circumstances, this is clearly a case where the Veolia...