The High Court has refused James Kenny permission to issue a plenary summons seeking to restrain An Bord Pleanála and the City Sheriff from enforcing a costs order made in 2001.
Mr Justice Cooke ruled on 23 July 2010 that the proposed claims were “unfounded and unstateable”. The application was made without notice to the proposed defendant. Leave was required because a 2006 order restricted Mr Kenny from bringing further proceedings against An Bord Pleanála without prior court approval, subject to a specified exception concerning a judicial review challenge based on alleged fraud.
The costs order Mr Kenny sought to resist arose from a 2001 order in favour of An Bord Pleanála after an unsuccessful application for leave to bring judicial review proceedings over planning permission for student residences at Dartry, Dublin, beside his house. The proposed summons relied in part on a complaint he had lodged with the European Commission about the judicial review outcome and the costs involved.
The judgment said the Commission had accepted the complaint for examination as “Irish EU Pilot Case 622/09/ENVI”. In correspondence described by the court, the Commission said it had asked the Irish authorities for further information about their plans to address high costs in the case, following a European Court of Justice ruling concerning Ireland’s implementation of rules on access to justice in environmental matters.
Mr Kenny also proposed alleging that fraud had affected the earlier judicial review leave hearing because relevant planning-file information had not been disclosed to the judge. He further alleged that the planning application did not comply with an EU environmental assessment directive. These were allegations in the proposed claim; the court did not determine them in this application.
The judge concluded that the Commission complaint could not affect the validity of a costs order made in 2001, before the relevant EU obligation took effect in Ireland in 2005. He also said proceedings by the Commission against Ireland could not stay or annul a national court order obtained by a third party. Even for a later costs order, the judgment said, possible non-compliance could at most give rise to a claim against Ireland for reimbursement of some excessive costs.
The court also found that the proposed relief was unrelated to the fraud allegation covered by the exception in the 2006 restriction. It refused leave to issue the summons. The ruling addressed permission to start the proposed action; it did not itself determine a separate claim for reimbursement.