The High Court has granted Sabrina Joyce-Kemper leave to appeal a costs decision arising from her successful challenge to planning permission for an Irish Water sewerage scheme and wastewater treatment plant at Clonshaugh, North Dublin. The court certified three reformulated questions of law as being of exceptional public importance.
In a judgment delivered on 10 June 2022, Humphreys J. considered whether the earlier costs decision should be appealed. Allen J. had quashed the planning permission in 2020 on one of the grounds Joyce-Kemper raised. In a later judgment, Allen J. awarded her 25% of her costs against An Bord Pleanála, excluding the costs of recusal and remittal applications, and made no costs order against the State.
The current decision grants leave to appeal on three questions. They concern whether a costs discount under the Supreme Court’s decision in Connelly v. An Bord Pleanála can apply where an applicant’s unsuccessful points should not have been argued; whether any discount should be more limited; and whether the Connelly approach should account for the Aarhus Convention so that applicants do not face a prohibitive balance of their own legal fees in environmental cases.
Humphreys J. agreed that Connelly can apply where an applicant loses a significant share of the case’s substantial points or loses a distinct hearing on an interlocutory issue. He said that the relevant distinction for costs was between successful and unsuccessful points, rather than between unsuccessful points that were substantial and those that were not. He also described the method for calculating a discount as not completely settled.
The judge said Joyce-Kemper’s Aarhus argument about her own legal costs was arguable and important. However, he noted that the Convention’s relevant obligations do not have direct effect, and that Joyce-Kemper had not pleaded a claim of non-transposition or sought a declaration on that issue. He considered a reference to the Court of Justice of the European Union inappropriate at this leave-to-appeal stage, while noting that a reference might arise in another context.
The order grants leave on the three reformulated questions and directs that it be perfected promptly. The case was listed for mention on 20 June 2022 to address the costs of the leave application and any consequential matters. The judgment does not determine the appeal or change the earlier costs award.