The High Court has ordered Nurendale Limited, trading as Panda Waste Services Limited, to pay Holly Hunter’s costs in a concluded judicial review concerning a waste licence. The court also ruled that the costs of a protective-costs application in separate, ongoing proceedings under section 160 of the Planning and Development Act are to be dealt with in that action.
In a decision dated 20 December 2013, Mr Justice Hedigan considered costs in two sets of proceedings. The judicial review had concluded after the Environmental Protection Agency (EPA) conceded the relief sought and agreed to an order for costs in January 2013. Panda, which was a notice party in that case, continued to participate and conceded later.
The judge said the judicial review arose from an error by the EPA in granting a waste licence and its subsequent attempt to remedy it. He noted that no fault had been alleged against Panda. The applicant argued Panda should have conceded when the EPA did, and that its continued participation led to considerable expense. Panda said it was entitled to maintain its position because it feared the proceedings could threaten the licence under which it operated.
The court held that the statutory default was that each party bear its own costs, but that costs could be awarded because of how a party conducted proceedings. The judge found Panda had delayed a year before conceding, during which there were numerous court appearances, including a contested application for leave to seek judicial review. He said the concern about the licence should have been clarified with the applicant’s legal advisers in December 2012 or soon afterwards. The failure to clarify had caused considerable expense. He awarded Hunter the costs of the judicial review to date, including the costs of the costs application.
A separate section 160 case against Panda remained underway. In that case, the court had granted Hunter a protective costs order, limiting when she could be made liable for Panda’s costs if she lost the substantive proceedings. Hunter then sought the costs of obtaining that order. Panda opposed the request, arguing that the evidence supporting it was limited and that awarding costs could imply misconduct.
The judge declined to award those application costs to Hunter at that stage. He said she might lose the substantive action while still benefiting from the protective order, and that it would be unjust to make Panda pay part of her ordinary costs if Panda later won. The court ordered that the costs of the protective-costs application be “costs in the action”, leaving them to be addressed as part of the ongoing case. The judgment did not decide the merits of the section 160 proceedings.