The High Court has refused Michael Rowan’s application for a certificate that would have allowed an appeal over costs in a judicial review concerning a road realignment in Doolahig, Glenbeigh, County Kerry.
Mr Justice Birmingham ruled on 28 July 2016 that it would not be just or proper to grant the certificate at this stage. The application asked the court to certify that its March 2012 decision involved a point of law of exceptional public importance and that an appeal should be taken to the Court of Appeal.
The underlying judicial review challenged Kerry County Council’s decision that a local road at Doolahig had been satisfactorily realigned. The court refused the relief sought. In the later costs decision, costs were awarded to the council and notice party Timothy Mulvihill under the ordinary rules. Rowan argued that each party should bear its own costs under the Environment (Miscellaneous Provisions) Act 2011; the council and Mulvihill disputed that the Act applied.
Rowan then sought to appeal the costs issue to the Supreme Court without first obtaining a certificate. In December 2014, the Supreme Court held that it had no jurisdiction to hear the appeal and dismissed it. Rowan subsequently returned to the High Court to seek a certificate, more than four years after the March 2012 decision.
In refusing the application, Mr Justice Birmingham focused on whether an appeal at that late stage would serve the public interest. He said the council and Mulvihill would be burdened by having to respond to and defend the same issue twice, and that a further appeal would prolong the proceedings.
The judge also said he did not consider that his 2012 decision involved the proposed point of law. He described it instead as a factual finding that the proceedings were not, in form or substance, designed to secure compliance with a planning condition to prevent environmental damage. He clarified that a sentence in the earlier judgment referring to Rowan’s “private agenda” should not be read as making a party’s motivation the test.
The court refused the certificate. It did not reopen the original judicial review or the earlier costs decision.