The Irish Supreme Court has dismissed an application by 13 appellants for a protective costs order. The applicants in the case had been denied protective costs orders in the High Court as they had not notified the respondent and notice party of their application for the orders.
The applicants in the case, Stella Coffey and others v Environmental Protection Agency and anor, sought to rely on Article 9(4) of the Convention on access to information, public participation in decision-making and access to justice in Environmental matters of 25 June 1998 (the 'Aarhus Convention'). This requires that the procedures for challenging the validity of certain administrative decisions affecting the environment “shall provide adequate and effective remedies, including injunctive relief as appropriate and be fair, equitable, timely and not prohibitively expensive".
The Supreme Court dismissed the applications based on the requirement of Constitutional fair procedures. Chief Justice Susan Denham said in her judgment, “Fair procedures are at the core of the law and the Constitution. Notice of proceedings, or of orders against a party, are basic to fair procedures and implicit in the administration of justice. Thus, it was entirely appropriate and correct for the learned High Court judges to order as they did.”
The Supreme Court noted that the judgment did not deal with any of the case's substantive issues. The judgment refered to R (Edwards) v Environmental Agency, which was heard in the Court of Justice of the European Union (CJEU) in April of this year. Bulletin readers may recall this case in which the United Kingdom Supreme Court asked the CJEU to clarify what exactly “prohibitively expensive” meant. The CJEU stated that the Court should not look at the estimated financial resources of an average claimant, nor should it look solely at the claimant’s financial situation. In addition the Court was of the opinion that the fact that a given claimant was not deterred from litigating was not in itself sufficient to determine that the proceeds were not prohibitively expensive.
Click here read R (Edwards) v Environmental Agency in full.
Click here to read the opinion of the Advocate General of the CJEU in R (Edwards) v Environmental Agency.