The High Court ordered Dunnes Stores to pay Deerland Construction Limited’s costs on a solicitor-and-client basis after concluding that the underlying planning judicial review was an abuse of process. An Bord Pleanála was awarded costs on a party-and-party basis, as it had sought.
Mr Justice Max Barrett delivered the costs judgment on 6 December 2016. The application followed the court’s dismissal of Dunnes’ judicial review and its later refusal to grant a certificate to appeal. This judgment addressed the costs applications; it did not reconsider the planning merits.
In the main proceedings, the court had found that Dunnes had no objection to the substance of the alterations covered by the retention permission. It concluded that the true purpose of the judicial review was to delay or avoid Dunnes’ contractual obligations concerning the anchor store at Ferrybank Shopping Centre, or to support a legal justification for its failure to meet them. The court dismissed the proceedings as an abuse of process without considering the purported planning issues.
Justice Barrett said solicitor-and-client costs depart from the usual measure and require a reason. Citing the approach in Geaney v Elan Corporation plc, he said the higher basis may mark the court’s particular disapproval of how proceedings were conducted or the basis on which they were brought. He rejected Dunnes’ submission that its conduct was less serious than the discovery failures in Geaney, reasoning that the abuse here affected the proceedings as a whole.
The judge said the prior finding of abuse, Dunnes’ pursuit of a collateral objective and the unusual circumstances justified the higher award to Deerland. He also noted that the National Asset Management Agency was the developer under the development agreement for the centre, meaning Deerland’s costs would ultimately be borne by NAMA and the taxpayer.
The court also ordered, by consent, that “now” in paragraph 12 of the certificate judgment be read as “not”. It refused Dunnes’ request for a stay to consider an appeal, finding no reason to grant one for that purpose.