The Supreme Court has dismissed appeals by 13 appellants who sought advance protection from potentially prohibitive legal costs in proposed challenges to an Environmental Protection Agency decision concerning genetically modified potato trials.
In a judgment delivered on 25 June 2013, Chief Justice Denham said the High Court judges were acting within their jurisdiction and were correct to refuse costs orders made without notice to the EPA and Teagasc, the proposed notice party. The Supreme Court affirmed the High Court judgments and orders.
The appeals concerned applications made ex parte, meaning without the proposed opposing parties being heard. The appellants had sought “not prohibitively expensive” orders, including limits on their exposure to costs. The Supreme Court considered the appeals on the papers after the appellants requested that approach.
The underlying context was an EPA decision of 25 July 2012 granting Teagasc consent, subject to conditions, to release certain genetically modified potato lines. The High Court judgments recorded that appellants wished to challenge the decision, but no judicial review proceedings had been commenced by the time of those applications. The statutory period for challenging the licensing decision was identified as eight weeks, with the High Court noting a deadline of 18 September 2012.
The High Court judges refused to grant the requested orders without notice. In several cases they allowed the appellants to bring motions on notice to the EPA and Teagasc. The Supreme Court noted that the appellants took no further steps in the High Court and instead appealed.
Chief Justice Denham said notice of proceedings or orders against a party is fundamental to fair procedures. The Court also upheld further orders made by Hedigan J. for similar reasons. It did not determine whether the environmental decision could be challenged, whether the proposed costs protection was otherwise available, or the substantive issues raised by the appellants.
The judgment noted that the Court of Justice of the European Union had ruled in April 2013 on the meaning of the requirement that certain environmental proceedings not be prohibitively expensive. The Supreme Court’s decision, however, was confined to the High Court’s refusal to make costs orders ex parte.