The High Court has acceded to An Bord Pleanála’s request for security for costs from Kimpton Vale Developments Ltd. in a judicial review concerning two fences. The court invited the parties to address it on the form of the order; the judgment does not specify the security amount or terms.
Kimpton Vale challenged a 9 December 2010 decision by An Bord Pleanála that construction of two 1.2-metre fences on particular lands was not exempted development because it would breach a condition of an earlier planning permission. The challenge was brought under judicial review proceedings identified as 2011 No. 125 J.R.
The security application arose under section 390 of the Companies Act 1963. The judgment said Kimpton Vale had substantial assets and borrowings, with bank liabilities estimated at just over €8 million in October 2011. Its ability to pay a costs award was likely to depend on the goodwill of the National Asset Management Agency, which had received the debts. The Board’s costs were estimated at about €13,400 and might be higher. The company was still trading and had not entered liquidation, receivership or examinership, but the judge said that did not establish it could meet a significant costs order.
The central question was whether Kimpton Vale faced a real prospect of having to pay the Board’s costs if it lost the judicial review. The judge found no suggestion that the challenge was improperly advanced, unreasonable or other than bona fide. The possibility of a costs award therefore turned on whether the ordinary rule that costs follow the event applied, or whether statutory rules for certain planning and environmental proceedings displaced it.
Justice Hogan concluded that the special costs rules in section 50B of the Planning and Development Act 2000 did not apply to this judicial review. Following the earlier decision in *JC Savage Supermarkets Ltd. v. An Bord Pleanála*, he held that the ordinary costs rules governed the case. He also concluded that the 2011 Act had not changed that result for this application.
Because Kimpton Vale could not otherwise meet the Board’s costs if ordered to pay them, the court acceded to the Board’s request for security for costs. The judgment did not set the amount, deadline or other terms; it invited the parties to address those matters before the order was made.