The High Court has ruled that an applicant who loses an application for a costs-protection determination under section 7 of the Environment (Miscellaneous Provisions) Act 2011 should ordinarily not have to pay the other parties’ costs. Each party should usually bear its own costs of the application, although a court may make an order in an exceptional case involving bad faith or litigation misconduct.
Mr Justice Garrett Simons gave the ruling in proceedings brought by An Taisce – The National Trust for Ireland against the Minister for Agriculture, Food and Marine, Ireland and the Attorney General. The judgment was delivered on 28 February 2022.
An Taisce intends to challenge the Aquaculture Licences Appeals Board’s rejection of a single appeal concerning 36 ministerial decisions on licences for bottom cultivation of mussels in Wexford Harbour. The organisation had prepared a judicial review application but had not formally issued the proceedings or applied for leave to bring them.
An Taisce had not yet sought a section 7 determination on whether its intended judicial review would attract the special environmental costs regime. It feared that if unsuccessful, it might face the costs of the State parties and 13 licence holders, which it estimated could total €300,000 plus VAT. Its chair said in an affidavit that such a liability would effectively bankrupt the charitable organisation.
Instead, An Taisce brought separate proceedings seeking an order that the State indemnify it against any costs imposed if it lost a costs-protection application. It argued that the State had failed to implement EU environmental law on legal costs correctly. The State parties initially questioned why An Taisce had not used the statutory mechanism. They later confirmed that, in their view, section 7 did not envisage a costs order against an unsuccessful applicant.
Justice Simons said the section was silent on the allocation of costs, but its purpose was to let parties obtain advance certainty about whether costs protection applied. The purpose would be undermined if an applicant seeking that certainty risked a prohibitive costs order. The judge concluded that each party would ordinarily bear its own costs of an unsuccessful section 7 application.
The ruling did not decide whether An Taisce’s intended judicial review should succeed or whether it would qualify for costs protection. The judge said An Taisce could now apply for a determination before issuing the judicial review. Because the costs concern could be addressed through that statutory application, an indemnity from the State was unnecessary.
The judge proposed a declaration on the effect of section 7 and an order striking out the balance of the separate proceedings. The costs of those proceedings remained unresolved: he said he would hear the parties further. The case was listed for a remote hearing on 15 March 2022, when the parties could address the proposed form of order and seek case-management directions.