The High Court has refused to award Kilshane Energy Limited enhanced legal costs against EirGrid following Kilshane’s successful challenge to a decision excluding proposed electricity generation units from a capacity auction.
In December 2024, the court had ruled in favour of Kilshane and other applicants and indicated that it would quash a Commission for Regulation of Utilities decision refusing to qualify their candidate units for the forthcoming auction. The matter was sent back to the CRU for fresh consideration within a short timetable.
During that remitted process, EirGrid produced a report addressing Kilshane’s proposed connection from its Huntstown site in Finglas to the Woodland Substation in Meath. Kilshane argued that the report disclosed reasons which should have been put before the court earlier, including issues concerning expansion of the substation, planning requirements and possible effects on other EirGrid grid projects.
Kilshane contended that the omission breached EirGrid’s duty of candour — the enhanced obligation on public bodies in judicial review to place relevant information openly before the court — and sought costs on the more punitive solicitor-and-client basis rather than the ordinary party-and-party basis.
Mr Justice Micheál O’Higgins accepted there was some basis for saying the later report contained new material and placed additional emphasis on substation expansion and related planning constraints. However, he was not satisfied that Kilshane had established wrongful or blatant withholding of relevant information.
The judge noted that Kilshane itself had supplied new material during the remitted process, requiring EirGrid to respond, and that feasibility remained the central issue throughout. He also found that serious consequences flowing from the alleged non-disclosure had not been proved.
The enhanced costs application was therefore refused. On the costs of that separate motion, however, the judge departed from the usual rule that the loser pays because Kilshane’s concerns had some foundation. He made no order as to those costs. EirGrid had already accepted that Kilshane was entitled to ordinary party-and-party costs arising from the substantive judicial review.