The High Court has ordered no costs in a dispute arising from Monaghan County Council’s clerical error in dating its refusal of a planning application for a cattle underpass. Each side will bear its own costs.
The judgment, delivered by Mr Justice Max Barrett on 10 June 2021, concerned a costs application after Donal McDaid abandoned judicial review proceedings. The case did not decide the merits of the planning refusal.
The Council received an application on Mr McDaid’s behalf on 18 October 2019 seeking retention of the underpass. Its refusal was dated 12 November 2019, less than five weeks later. Mr McDaid’s proceedings, begun by ex parte application on 20 January 2020, challenged the apparent timing of the decision against the five-week period associated with public notice and submissions under the planning regulations.
Discovery later showed that the Council had in fact reached its decision within the legally prescribed timeline. The date on the refusal was a clerical error. Mr McDaid then abandoned the proceedings, and the Council sought its costs. It argued, among other things, that the proceedings might have been avoided if he had first contacted the Council.
The judge rejected the suggestion that a person must check with a planning authority before starting proceedings over an error recorded on a planning file. He said the Council’s clerical mistake was still an error, even though there had been no more substantial breach.
Under section 169(4) of the Legal Services Regulation Act 2015, a party who abandons proceedings is generally liable for the reasonable costs incurred by the other side, unless the court orders otherwise. The judge said Order 99 required the court to consider the section 169(1) factors, while leaving it open to consider other relevant matters.
He found no criticism of either side’s conduct and considered it reasonable for Mr McDaid to raise the timing issue on the information available to him. The circumstances supported a departure from the usual costs position: the applicant’s central point proved mistaken, but the Council’s own clerical error had brought about the proceedings. The court made no order as to costs.