The High Court has ordered the defendants to pay the costs of a case in which Dominic Dunne unsuccessfully challenged a law concerning the South Eastern Route Motorway and national monument protection.
Miss Justice Laffoy made the costs order after finding that the case raised difficult legal issues of general public importance. The order applies against all defendants, despite the court having ruled against Mr Dunne on every substantive issue.
The substantive challenge concerned section 8 of the National Monuments (Amendment) Act 2004 and whether it was invalid under the Constitution and certain provisions of European law. In a judgment delivered on 7 September 2004, the court rejected the challenge. An appeal by Mr Dunne to the Supreme Court was pending when the costs judgment was delivered on 18 March 2005.
The costs judgment considered Mr Dunne’s application for his costs and the defendants’ application for their costs under the usual rule that costs follow the event. Mr Dunne argued that he had brought a public interest challenge without seeking a private advantage, and that the case raised issues important enough to justify an award of costs in his favour.
Justice Laffoy accepted that the case had the characteristics of a public interest challenge. She said Mr Dunne had acted as a private citizen concerned about the effect of motorway construction on the archaeological site at Carrickmines Castle. The central issue, she said, concerned the Oireachtas’s power to pass laws facilitating road development that could affect a national monument.
The judge also considered the history of earlier proceedings. Mr Dunne had obtained an interlocutory injunction in a previous case, which effectively halted road works at Carrickmines Castle without a valid consent under the National Monuments Act 1930, as amended. The judgment said that a later challenge to a joint consent and ministerial order was successful, and that this in turn prompted the special provision in section 8 of the 2004 Act concerning the South Eastern Route.
The plenary hearing in the present case began by consent on 26 August 2004 and lasted four days. No oral evidence was heard. Justice Laffoy said the parties and their legal teams had conducted the case in a timely and cost-efficient manner. The outcome turned almost entirely on legal questions, all decided in the defendants’ favour.
Despite that outcome, the judge found special circumstances to depart from the ordinary costs rule. She said the court’s discretion in this kind of public law case did not depend on the plaintiff winning one or more issues. She ordered costs in Mr Dunne’s favour against all defendants. The order concerned costs; it did not reverse the substantive ruling, which remained subject to the pending appeal.