The High Court has declined to make an advance costs order sought by NO2GM Ltd. before it began a challenge to an Environmental Protection Agency consent for the field release of genetically modified potato lines at Teagasc, Oak Park, County Carlow.
In a judgment delivered on 28 August 2012, Mr Justice Hogan said the company had not yet started proceedings to challenge the EPA’s decision of 25 July 2012. The application asked the court to declare in advance that any costs order would not be prohibitively expensive. The judge refused the requested relief because a final order of that kind could not fairly be made without hearing the Agency and any other parties who might be affected.
The judge said the legal meaning of “not prohibitively expensive” remained uncertain and required clarification from the Court of Justice of the European Union. He noted that the EU requirements on costs in environmental proceedings did not themselves prevent courts from making costs orders, provided the costs were not prohibitive. He said complex environmental litigation costs might deter members of the public, but treated that as a provisional view pending further clarification.
The judgment also questioned whether the relevant environmental rules applied to a challenge concerning a licence for field tests involving genetically modified organisms, and whether those rules required costs to be set in advance and capped. The court did not decide those questions.
Justice Hogan said the EPA decision had been made under the Genetically Modified Organisms (Deliberate Release) Regulations 2003. He noted that any challenge to the decision appeared to have to be brought within eight weeks, by 18 September 2012, and that the High Court had no power to suspend or extend that period.
The judgment also raised, without deciding, whether a limited company had standing to challenge the Agency decision absent evidence that its commercial interests were adversely affected. It likewise expressed no view on whether Percy Podger, who appeared for the company and was neither a solicitor nor counsel, was legally entitled to represent it.
The court’s decision was limited to refusing the advance costs relief. It did not determine the validity of the EPA consent or any challenge to it.