The High Court ordered the applicant to receive the costs of a motion concerning statutory cost protection in environmental litigation, with the amount to be taxed if the parties cannot agree.
In a judgment delivered on 10 October 2014, Ms Justice Baker said the motion sought a declaration that section 3 of the Environment (Miscellaneous Provisions) Act 2011 applied to proceedings brought under section 160 of the Planning and Development Act 2000. The statutory regime generally provides that each party bears its own costs, subject to limited exceptions.
The judge had made the declaration on 16 July 2014, after a hearing, and reserved the costs question. She then adjourned the matter so the parties could consider the judgment before arguing costs. Her concern was that costs in environmental cases should not be prohibitively expensive, including the expense of the declaration motion itself.
The applicant’s solicitors had written to the respondents on 16 December 2013 asking them to agree that the statutory regime applied. Baker said this gave the respondents an opportunity to consider the issue early enough to avoid the motion hearing.
The fourth defendant had filed an affidavit calling the application “wholly misconceived” and arguing that the proceedings were outside the statutory class. Baker said that affidavit raised the relevant tests. But the respondents also filed a lengthy engineer’s affidavit and other affidavits addressing the merits of the underlying section 160 claim. In the judge’s view, those materials unnecessarily lengthened the hearing and complicated the arguments.
The respondents made a Calderbank-type offer of a small sum towards the costs claim after the declaration order. Baker said the offer was at the lower end for a standard motion on notice and did not adequately reflect the difficult issues the respondents had raised, some of which went beyond what was needed to decide the application.
The court therefore ordered that the applicant have the costs of the motion, to be taxed in default of agreement. The judgment concerned the costs of that motion; it did not determine the substantive section 160 claim.