The High Court has ordered EPUK Investments Limited to pay the costs of two failed judicial reviews, including reserved costs and the costs of motions to exclude evidence, after rejecting its request for costs protection and other departures from the usual rule that costs follow the event.
Mr Justice David Holland gave the costs ruling on 22 March 2023. The two cases had been dismissed on 10 February, following a joint three-day trial. The proceedings challenged an Environmental Protection Agency email about interpreting Best Available Techniques conclusions for industrial emissions licences, and a Commission for Regulation of Utilities decision introducing annual run-hour-limit de-rating in electricity capacity auctions.
EPUK argued that section 50B of the Planning and Development Act 2000 required each side to bear its own costs. The judge held that the EPA email was not a justiciable decision, had not been made pursuant to a statutory provision and was not a purported decision for the purposes of that section. In the CRU case, he found that the de-rating decision had not been made under a statutory provision giving effect to the Industrial Emissions Directive.
EPUK also sought an order that each side bear its own costs because the cases involved public interests, including environmental regulation and securing electricity supply. The judge accepted that the subject matter was of public interest, but found that EPUK’s predominant motive was commercial: it sought to avoid a competitive and financial disadvantage. He also concluded that the legal issues did not have sufficient general public importance to justify departing from the usual costs rule.
The judge declined to make a “Veolia” order reducing costs for issues on which the respondents had not succeeded. He found that the trial was short, the evidence motions were a minor part of the case, and the respondents’ arguments had not appreciably lengthened the trial or increased costs.
The order awards the costs of each set of proceedings to the EPA and CRU, against EPUK. The respondents were also awarded the costs of the costs hearing. However, perfection of that part of the order was deferred for two weeks. EPUK could make brief written submissions within one week on those costs; if it did, the judge would decide how to proceed. Otherwise, the order would be perfected when the two weeks expired.