The High Court has refused solicitor Michelle Hayes’ application to have her legal costs paid after she lost a challenge to an emissions licence granted to Irish Cement Limited.
In a judgment delivered on 24 January 2023, Mr Justice Twomey said Hayes had lost her judicial review on all grounds. The challenge concerned the EPA’s grant of a revised emissions licence to the cement company. The court had dismissed the substantive challenge in an earlier judgment, delivered with a related case brought by another applicant.
The judge rejected Hayes’ argument for costs under section 50B(4) of the Planning and Development Act 2000, which allows a losing party to receive costs in exceptional public importance cases where special circumstances make an award just. He said the case did not meet that high threshold and was a typical judicial review about an administrative body’s reasons for a decision.
The court also relied on its earlier criticism that Hayes had argued issues that were not part of her pleaded case, wasting court time. Because she had the benefit of environmental costs protection, the judge said she had a particular onus to conduct the litigation efficiently. That protection meant she was generally shielded from an order to pay the other parties’ costs if she lost.
The judgment said respondents could have sought costs against Hayes under section 50B(3), which permits costs orders in specified circumstances, including how a party conducted proceedings. They did not seek such an order in this judgment. The judge said he would likely have awarded costs against her for the inefficient conduct of the substantive hearing if the respondents had applied.
The EPA also described Hayes’ arguments at the costs hearing as frivolous, but did not apply for its costs of that hearing. The judge said he likely would have granted such an application, given the further use of court time and public funds. The judgment does not make an order requiring Hayes to pay those costs.
Hayes’ case was heard alongside a similar challenge by a second applicant, whose application had also failed. That applicant agreed to an order dismissing her case with no order as to costs and did not pursue a separate costs hearing.
The judge noted that the combined cases took seven days in the High Court. He said the taxpayer was likely to bear substantial legal costs for the state parties, while Irish Cement also incurred costs. The judgment identifies no amount awarded to Hayes or against her in the costs proceedings.