The High Court refused an unrepresented applicant’s request for an advance indemnity covering his legal costs in proposed judicial review proceedings against Fingal County Council. The court said it was not satisfied that it had jurisdiction to make the blanket order sought.
The preliminary costs decision was given by Mr Justice Michael Peart on 11 December 2013. The applicant had filed an application for leave to seek judicial review in what the judge described loosely as an environmental matter. The application for leave itself was not decided in this ruling.
The applicant sought an order before moving for leave that Fingal County Council would meet his legal costs regardless of the result. He argued that this was required to give effect to Ireland’s obligations under the Aarhus Convention and relevant EU directives. The judge characterised the request as seeking legal aid or an indemnity for the applicant’s own costs, whatever the outcome.
The court considered the Aarhus Convention’s requirement that environmental proceedings must not be “prohibitively expensive” and the European Court of Justice’s judgment in David Edwards v Environment Agency and others. The judge said those sources did not require legal aid or an advance costs order. He also said section 50B of the Planning and Development Act 2000, as amended, provided that no costs order could be made against an unsuccessful applicant in cases covered by the section, while allowing the court discretion to award costs to a successful applicant.
The judge said a declaration that the applicant was entitled to an advance indemnity under Aarhus or otherwise would require the Attorney General to be joined, because the argument concerned whether the State had failed to meet its obligations. The applicant was offered the opportunity to join the Attorney General but decided not to do so.
Mr Justice Peart refused the application, finding that the protective costs order jurisdiction identified in earlier cases did not extend to the blanket indemnity requested. He put the matter back to allow the applicant to consider whether to continue with his leave application. The ruling did not determine that application or the underlying dispute. The judge also noted that papers appeared to indicate the applicant had a private commercial interest in the proceedings’ outcome, and said a costs cap did not arise because, if unsuccessful, the applicant could not be ordered to pay costs under the statutory provision described.