The High Court has refused an application by Waterville Fisheries Development Limited to limit its exposure to costs after its challenge to a temporary fish-farming licence failed. Mr Justice Gerard Hogan held that the special environmental costs rules relied on by the company did not apply to these proceedings. The ordinary costs rules therefore continued to govern costs orders already made against it.
The application concerned costs from judicial review proceedings over a decision by the Aquaculture Licenses Appeals Board on 31 October 2012. The Board had upheld a ministerial decision to grant Silver King Sea Foods Limited, trading as Marine Harvest Ireland, a temporary licence to amend operating procedures at its salmon farming site at Deenish Island in Ballinskelligs Bay, County Kerry.
The court had previously ruled that Waterville had standing to bring the judicial review and that the proceedings were validly constituted. In a second judgment, it found that the Board should have given written reasons for not holding an oral hearing. But the judge concluded that this procedural failure did not provide substantial grounds to challenge the licence: no central factual conflict had been identified, and there was no obligation to hold an oral hearing in the circumstances. The application for leave to seek judicial review was dismissed, and on 31 July 2014 the court made costs orders in favour of the two respondents and the notice party.
Waterville later sought a declaration that the costs ordered against it would be “prohibitively expensive”, relying on environmental-law protections. The judge noted that the motion was brought after the costs order and after the time for an appeal had expired. The respondents argued that the court no longer had jurisdiction to hear it. Hogan assumed, for the purpose of deciding the motion, that he had jurisdiction.
He held that the Environment (Miscellaneous Provisions) Act 2011’s modified costs rules did not cover this fisheries licensing regime or judicial reviews concerning decisions under it. The Aarhus Convention had not been made directly part of Irish law, and the applicant could not invoke it independently to alter the costs position.
The judge also rejected reliance on Article 11 of the Environmental Impact Assessment Directive. That provision’s protection against prohibitively expensive proceedings applies to cases alleging non-compliance with the Directive’s requirements for relevant projects. These proceedings did not raise such a claim, the court found. The result was that the ordinary costs rules remained applicable to the costs orders already made. The judgment did not revisit the underlying licence decision.