The High Court has declined to make an adverse costs order against Intel after reopening a costs hearing in Thomas Reid’s judicial review of planning permission for the company’s development. The court made no order as to costs between Reid and Intel and directed that the matter be listed on 8 November 2021 to consider any application for leave to appeal the costs order.
The hearing concerned Intel’s earlier motion to exclude evidence Reid sought to rely on, including a United Nations Economic Commission for Europe (UNECE) document. In an earlier ruling, the court allowed that document to be included because it was referred to in Intel’s Natura Impact Statement and helped clarify material before the planning decision-maker. The court had excluded other evidence.
Reid argued that Intel should face an adverse costs order for seeking to exclude the UNECE document and for how it pursued the motion. He said Intel had itself referred to the document before An Bord Pleanála, and contended that an affidavit supporting the motion suggested the document had not been before the board. He also argued that Intel should have checked the document’s status and title more carefully and drawn its relevance to the court’s attention.
Justice Humphreys rejected the case for changing the costs position. He said Intel’s attempt to exclude the document was within the bounds of ordinary legal argument, and did not accept that the affidavit asserted that all disputed material had been absent from the board’s proceedings. Although the court acknowledged some support for parts of Reid’s criticism in an earlier judgment, it said the conduct did not warrant an adverse costs order or a marker of disapproval.
The judge noted that the UNECE document was known to all parties, so the dispute was about whether it could form part of the evidence in the judicial review, rather than information being concealed. The document had been addressed in only two paragraphs of the 68-paragraph judgment on Intel’s exclusion motion, and no major additional costs were incurred because of the objection to it.
The costs of that motion had already been dealt with in the substantive judgment, which made no order as to those costs. The court said the applicant had raised no sufficient reason to change that position. The underlying judicial review had previously been dismissed, and leave to appeal had previously been refused; the present judgment addressed the renewed costs submissions.