Environmental group Friends of the Irish Environment has requested that the President consider referring a provision inserted in Section 50(b) of the Planning and Development (Amendment) Act to determine its constitutionality. Section 50(b) purports to comply with EU Directive 85/337, which requires that member states provide procedures for access to environmental justice which are "not prohibitively expensive". The ECJ has clarified that for member states to satisfy this requirement, the existence of a judicial discretionary power to depart from the usual "costs follow the event rule" did not suffice; see Commission -v- Ireland C-427/07.
Section 50(b) provides that each party shall bear its own costs. The Court will retain its power to make a costs award only in matters of exceptional public importance, where the special circumstances so require it or because of the parties' conduct. This has been criticised on the basis that it will have a chilling effect on environmental public interest litigation.
It is worth noting that an English report "Ensuring access to environmental justice in England and Wales: Report of the Working Group on Access to Environmental Justice (2008)" noted that compliance with the Aarhus Convention (which EU Directive 85/337 implements) was unlikely to be achieved simply by limiting the exposure of the claimant to adverse costs because the cost of funding a case could be "prohibitively expensive". See www.unece.org.
In this context, a report by the Law Society of Ireland Law Reform Committee "Enforcement of Environmental Law: The Case for Reform (2008)" proposed a statutory framework for the award of protective costs orders. Among other points, the report recommended that (a) it should not be a requirement for the making of a protective costs order that legal representatives act pro bono; and (b) in considering whether to grant such an order, the Irish courts should consider the virtual absence of civil legal aid in environmental matters. Both these considerations are highly relevant to a situation where the legislature is now effectively requiring environmental public interest litigants to be represented pro bono. The environmental law firm "ClientEarth" endorses "one-way costs shifting" as an appropriate means of complying with the Aarhus Convention. This would mean that successful claimants would recover their costs and unsuccessful claimants would not be exposed to an adverse costs award.
An English report on costs has proposed what may be a more palatable (or less unpalatable) option from the State's perspective: "qualified one-way costs shifting", whereby costs can be awarded against a claimant where the financial resources or conduct of the parties so warrant it. See "Review of Civil Litigation Costs: Final Report" by Lord Justice Jackson (December 2009) at www.judiciary.gov.uk. Either way, it should be noted that although Section 50(b) removes the adverse costs award exposure for environmental public interest litigants, it is severely limited. It only addresses one side of the two-sided costs barrier for litigants: covering legal representation and risking an adverse costs award.