The High Court has refused to grant a Protective Costs Order in favour of a plaintiff wishing to bring proceedings with regard to planning decisions.
The plaintiff argued that the High Court should be in a position to give effect to the Aarhus Convention and its prohibitive costs prevention provisions.
Ireland ratified the UNECE Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters, most commonly known as the Aarhus Convention, on 20 June 2012. Article 9 of the Convention allows the public access to justice. All members of the public are entitled to access to review procedures to challenge decisions relating to the environment. Such procedures must be ‘fair, equitable, timely and not prohibitively expensive”.
Judge Hedigan found that the State had attempted to give effect to the Convention in the Environmental (Miscellaneous Provisions) Act 2011 and more specifically Section 3 of the Act. This provides for an order by the Courts to make no order for costs in cases which Section 3 of the Act applies. This may be done by agreement with the defendants or by notifying the defendants that Section 3 applies. Judge Hedigan concluded that this was the correct approach for the plaintiff rather than the application before him. In addition, the Judge was of the opinion that such a motion was within the jurisdiction of the judge who hears the motion and therefore he was unable to grant the order at this point.
PILA Bulletin readers may recall CJEU advocate-general Kokott’s recent opinion on the meaning of “prohibitively expensive” in environmental legal proceedings.
Click here to read PILA’s report on The Costs Barrier & Protective Costs Orders