The High Court has ordered John Callaghan to pay the respondents’ and notice parties’ costs of his unsuccessful application for leave to bring a judicial review over a proposed wind farm, but awarded him costs for a separate application for a certificate to appeal one point of law. The costs awards are stayed until the appeal is determined.
In a judgment delivered on 12 October 2015, Ms Justice Costello considered costs arising from the leave application, a motion under section 3 of the Environment (Miscellaneous Provisions) Act 2011, an application for a preliminary reference to the Court of Justice of the European Union, and the certificate application. In an earlier judgment, the court had refused leave on all grounds. It later certified one of three proposed points of law for appeal as a point of exceptional public importance.
Callaghan argued that the case involved public interest issues, including public participation in the planning process for strategic infrastructure development. He said the legal issues could affect future applications and relied on the certificate as evidence of the point’s importance. The respondents and notice parties opposed his costs request, arguing that he had not shown special circumstances to justify departing from the usual rule that costs follow the outcome.
Costello J held that the certificate itself could not establish an entitlement to costs for the failed leave application. The point’s general importance, and the public concerns about the particular development, were not enough without other special circumstances. She also considered Callaghan’s substantial personal interest in the case, which remained relevant despite not automatically barring a costs award. The court was not satisfied that a departure from the ordinary rule was justified.
The respondents and notice parties were therefore awarded their costs of the leave application, the section 3 motion and the CJEU reference application. The court rejected an argument that those costs should be capped as not “prohibitively expensive”, noting that Callaghan had not argued that the relevant Irish statutory provision incompletely transposed the EU directive.
The certificate application had a different result. Callaghan had advanced three recast points and succeeded on one. The judge awarded him the costs of that one-day application, including written submissions, against the State and An Bord Pleanála. She did not award those costs against the first named notice party, which had no power to facilitate the alleged fair-procedure rights at issue. The judgment did not determine the pending appeal; all the costs awards were stayed until it is decided.