The High Court has refused an application to set aside leave granted to Oliver Barry to bring a judicial review challenge over the Planning Tribunal’s refusal to award him costs. The ruling allows the case to proceed; it does not decide whether the Tribunal acted unlawfully or whether Barry is entitled to costs.
Mr Justice Hedigan delivered the judgment on 22 May 2012. The leave to seek judicial review had been granted ex parte on 18 July 2011. The Tribunal’s present members asked the court to set it aside, arguing that Barry had failed to disclose material information, that the challenge was brought too late, and that the proceedings were an abuse of process.
The challenge concerns a Tribunal costs decision made on 15 October 2004. The Tribunal chairman had refused Barry’s costs after finding that he had obstructed and hindered the Tribunal. In 2010, the Supreme Court held in Murphy v Flood that the Tribunal had acted beyond its powers in making obstruction and hindrance findings against the plaintiffs in that case and in relying on those findings when refusing their costs.
Barry later asked the Tribunal to reconsider its decision. On 7 March 2011, it refused. Barry sought judicial review of that refusal, including an order quashing it and related declarations. The judge noted there was no delay issue in challenging the March 2011 decision; the central timing question concerned the attempt to reopen the 2004 costs decision.
The judge accepted that the delay over the 2004 decision was “very great” and far beyond the period that would normally support an extension of time. But at this stage, he was considering whether the case was arguable, not deciding its substantive issues. Barry said he had been unable to afford proceedings in 2004 and had been advised that a challenge was unlikely to succeed. The judge said those reasons could arguably excuse the delay, leaving their ultimate weight for the substantive hearing.
The court also considered whether the apparent illegality of the 2004 decision and the balance of justice supported allowing the claim to continue. It found those questions arguable, as was the case’s potential merit in light of the similarities with the costs decision considered in Murphy v Flood.
The judge accepted that Barry’s grounding affidavit did not mention related plenary proceedings, but found there had been no material non-disclosure because counsel had informed the judge hearing the ex parte application. He described the omission as undesirable and said such matters should be included in the grounding affidavit.
The application to set aside leave was refused. The court did not extend time or determine whether the 2004 decision was unlawful; those matters remain for the substantive hearing.