The Supreme Court has ruled that the costs provisions in the Environmental (Miscellaneous Provisions) Act 2011 do not apply retrospectively to litigation that began before the relevant sections came into force. It left in place the High Court’s costs order against Peter Sweetman and ordered him to pay Shell’s costs of the appeal.
The judgment, delivered by Mr Justice Peter Charleton on 17 October 2016, addressed costs after the Supreme Court had already dismissed Sweetman’s appeal in February 2016. His original case sought an injunction to stop works on the Corrib gas pipeline at Ballinaboy, County Mayo, under section 160 of the Planning and Development Act 2000.
At the 2006 High Court hearing, Sweetman pursued claims that Shell had failed to comply with conditions 1 and 37 of its planning permission. The High Court rejected the claims and awarded costs against him. The Supreme Court later upheld the finding of substantial compliance with condition 37 and held that the appeal had become moot after Mayo County Council accepted the security arrangements and no live controversy remained.
After losing the appeal, Sweetman argued that the 2011 Act should change the costs orders so each side would bear its own costs. The Act introduced a default rule for specified environmental proceedings under which each party bears its own costs, subject to exceptions. Shell opposed applying that rule to the earlier litigation, arguing that the costs changes affected substantive rights and that the proceedings fell outside the provisions or justified costs against Sweetman because of how they were conducted.
The Supreme Court held that the Act contained no clear wording making the new costs regime retrospective. It said liability for costs affects decisions about whether to bring or defend litigation and is more than a procedural matter. The statutory regime therefore applies to future litigation commenced after its start date, not cases already under way.
The court said that even if the Act applied retrospectively, an exception allowing costs where proceedings were conducted improperly would support leaving the High Court order intact. It cited the High Court’s criticism that allegations were unsupported by evidence and noted that the appeal had remained inactive for about a decade while the pipeline infrastructure was built and gas began coming ashore. The court ordered Sweetman to pay Shell’s costs of the appeal.