The High Court has ruled that John and Sheena Clancy have no costs protection for their claim against Clare County Council, insofar as that claim does not depend on their case against the other respondents. The ruling addresses the costs of the costs protection application; it does not decide the couple’s challenge to the compulsory purchase order for Ennistymon’s inner relief road.
Mr Justice Humphreys delivered the judgment on 5 May 2023. The Clancys are seeking to quash An Bord Pleanála’s 20 September 2022 approval of a compulsory purchase order covering land that includes their home and business premises. Their wider case also raises constitutional and environmental law grounds.
The court considered whether the applicants could have costs protection while arguing that they were entitled to costs protection for the proceedings. The judge said an applicant who can show an arguable basis for costs protection should receive protection for the hearing on whether it applies. But he found that the Clancys had not shown an arguable basis for protection in this case.
The judge said the compulsory acquisition legislation at issue did not give effect to the environmental assessment directives and was not, on the arguments advanced, national law relating to the environment for the purposes of the Aarhus Convention. The earlier development consent for the road had not been challenged in time, he said, and the later compulsory purchase process could not be used to reopen that decision.
The order declares that the Clancys’ application for costs protection against the council is not covered by a costs protection rule, except insofar as it depends on succeeding against the other respondents. The applicants may bring a motion seeking costs protection against those respondents. That motion is to be heard before the application for leave to proceed on notice or other further steps that generate costs.
The judge directed that any related claim for costs protection against the council be considered summarily if the applicants obtain protection for the proposed motion against the other respondents. Unless a written legal submission was lodged within seven days, the order was to be perfected with no order as to costs for the present application against the council. The proposed motion against the other respondents would have costs protection; if the council participates with the court’s permission, it must bear its own costs.
The judgment did not determine whether the CPO is valid, whether the applicants will obtain leave to proceed, or whether they are entitled to costs protection for the substantive proceedings.