The High Court refused two applications by Dymphna Maher seeking protection from potential legal costs in connection with planned proceedings about recent planning decisions.
In a judgment delivered on 22 October 2012, Mr Justice Hedigan rejected her request for an ex parte order guaranteeing that she would not face liability for costs. The application relied on the Aarhus Convention and argued that the court, as a European court, should give effect to its provisions against prohibitive costs.
The judge said the State’s approach to implementing the convention was set out in the Environmental Protection Act 2011, particularly section 3. He said the Act provided for a court to make no order for costs in certain qualifying cases, either by agreement with intended defendants or following a motion on notice seeking a declaration that section 3 applied.
The judgment said there was no provision for the court to make the requested order without notifying the intended defendants. The judge said it was not for the court to legislate and identified consent or a motion on notice as the appropriate routes.
Ms Maher also asked the court to rule that she would not be liable for costs if that motion failed. Mr Justice Hedigan said he did not believe he had jurisdiction to make such an order; the costs issue would be for the judge hearing the motion. He acknowledged that the possibility of costs could be an obstacle to bringing it, and said the absence of a provision protecting applicants from such exposure could arguably undermine the State’s efforts to ensure costs were not prohibitive in certain planning cases.
The judge said he had no power to change the position. Both orders sought were refused. The judgment does not determine whether section 3 applies to the proposed proceedings or decide any underlying planning dispute.