The Court of Appeal has made no order as to costs after Friends of the Irish Environment CLG lost its challenge over whether corporate bodies could obtain civil legal aid.
The ruling, delivered by Mr Justice Brian Murray on 31 July 2023, concerned costs only. The court had already rejected the group’s claim that it was a “person” eligible for legal aid under the Civil Legal Aid Act 1995. It had also refused a request to refer questions about EU law to the Court of Justice of the European Union.
The Legal Aid Board did not seek its appeal costs, despite succeeding. It said environmental costs protection should apply by analogy because the legal aid case was connected to separate proceedings challenging the National Planning Framework and National Development Plan. The Board accepted that section 50B of the Planning and Development Act 2000 did not apply directly to this case.
Friends of the Irish Environment sought some of its costs, proposing that the Board and the notice parties pay its Court of Appeal costs, with no order for the High Court costs. It argued that the case was a test case, raised a public interest issue and involved a novel interpretation of the 1995 Act. Ireland and the Attorney General, the notice parties, said they would bear their own costs but opposed an award to the group because it had lost at every stage.
Mr Justice Murray said the usual position is that costs follow the outcome, but courts retain discretion to depart from that rule. He noted that public interest and general importance can be relevant, but do not automatically entitle an unsuccessful party to costs. The decision also distinguished between ordering costs against an unsuccessful claimant and awarding costs to that claimant.
The judge said the legal question was novel and the group’s arguments were not insubstantial. He also accepted that the proceedings for which legal aid was sought were being pursued in the broader public interest. However, he found that the issues did not have the exceptional importance required for an award to an unsuccessful litigant. The case did not involve the kind of foundational constitutional or European law issues seen in cases where such costs orders had been made, and it was not a test case in the relevant sense.
The court concluded that the circumstances did not meet the threshold for awarding costs to the group. It made no order as to costs of the proceedings. The judge said he would not have ordered costs against the group; the Board and notice parties had already agreed not to seek them.