The High Court has made no order as to costs in relation to an unsuccessful judicial review leave application challenging the proposed North/South electricity interconnector. The order covered the leave application and injunction request up to and including the judgment refusing leave. The court reserved the costs of the separate, exceptionally complex costs hearing, including a reference to Luxembourg.
Mr Justice Richard Humphreys delivered the judgment on 30 October 2018. The applicants were North East Pylon Pressure Campaign Ltd and Maura Sheehy. They sought costs against the other parties. The State respondents sought no costs, while An Bord Pleanála and EirGrid applied for costs against the applicants; EirGrid sought only partial costs.
The leave application had been refused in May 2016 because it was premature: it challenged an ongoing process before An Bord Pleanála had decided the relevant application. The judge said that prematurity determined the overall outcome of the leave application. The applicants nevertheless succeeded on several issues, including whether their complaints were arguable and whether they were out of time. The board and EirGrid succeeded on other issues, including the board’s jurisdiction to determine the complaints.
Assessing the complex proceedings issue by issue, the judge found that the points on which the applicants won took broadly similar time to those on which they lost, leaving at most a modest balance of costs in favour of the board and EirGrid. He concluded that the bulk of the case concerned environmental issues covered by protections against litigation costs being prohibitively expensive. He also said the domestic statutory costs provisions did not fully reflect EU law, but that this did not require those provisions to be treated as invalid.
The judge considered that a no-order outcome was the practical way to apply those protections, and that the non-EU points had not significantly added to the length of the application. He also noted that late adjournments had wasted court time, including an alternative hearing date vacated shortly before it was due to take place. He said that, even if a balance of costs otherwise remained, his discretion would lead him to make no order.
The ruling concerned costs only. It did not decide the reserved Supreme Court appeal concerning the substantive challenge to the project’s development consent.