The Supreme Court has dismissed two appeals by James Kenny concerning costs awarded to the Provost, Fellows and Scholars of the University of Dublin, Trinity College, in long-running litigation over student accommodation in Dartry, Dublin. The Court also refused Trinity’s motion to dismiss the appeals as moot.
In a judgment delivered by Justice Baker on 26 August 2021, the Court upheld Clarke J.’s refusal to let Kenny begin proceedings seeking to set aside four costs orders. It also upheld Laffoy J.’s dismissal of separate proceedings seeking to pause enforcement of three of those orders while the European Commission considered complaints made by Kenny.
Kenny argued that the costs should have been considered under the “not prohibitively expensive” principle associated with the Aarhus Convention and EU environmental law. The Court accepted that, under the Court of Justice of the European Union’s 2018 Klohn ruling, costs in proceedings still ongoing after the 25 June 2005 transposition deadline could in principle be assessed consistently with that principle, including costs incurred earlier.
But the Court said the orders and cost assessments at issue had become final under Irish law. Kenny had not used available procedures to challenge the relevant taxations on that basis. The first costs order and its taxation had been concluded by 2002. For the other orders, the costs were taxed after the 2005 deadline, but Kenny either did not attend the taxation or did not seek a review raising the not prohibitively expensive principle.
The Court also concluded that Kenny’s proposed action before Clarke J. was directed in substance at reopening the planning permission and earlier rulings, rather than challenging the allocation or measurement of costs on not prohibitively expensive grounds. Clarke J. was therefore entitled to refuse leave to commence it. In the stay proceedings, the Court said the costs decisions were final and that no basis remained for the requested interlocutory relief.
The Court invited the parties to make further submissions about interest on the taxed costs. Trinity’s counsel had calculated the costs and interest as exceeding €1 million. The judgment did not determine the amount payable or resolve the treatment or applicable rate of interest; those matters were left for further submissions and case management.