The Irish High Court has granted a protective costs order (PCO) in Hunter v Nurendale trading as Panda Waste to an applicant trying to stop allegedly unauthorised development at a waste facility near her home. Click here to read the full judgment.
Article 9 of the Aarhus Convention (http://ec.europa.eu/environment/aarhus/) says that litigation in certain environmental matters shouldn't be prohibitively expensive. Part 2 of the Environment (Miscellaneous Provisions) Act 2011 incorporates Article 9 into Irish law, and protects an unsuccessful applicant from having costs awarded against them.
The respondent Panda argued that the legislation only allowed a protective costs order to be made in a situation where an applicant was trying to force the respondent to comply with a planning permission or licence – not, as in the current case, where the issue was about an unauthorised development that had no permission or licence. The applicant argued that it couldn't be the Act's intention to have such an artificial distinction. The Court agreed and also said that the reliefs sought by the applicant in this case were in the public interest.
The judge applied the criteria for making a protective costs order set out in the European Court of Justice decision David Edwards & Anor v Environment Agency & Anor ((C- 260/11), 11 April 2013). In that case the European Court reiterated that costs in environmental cases should not be “prohibitively expensive” - meaning people shouldn't be prevented from pursuing a claim because of the potential financial burden. To work out what that meant in practice, the European Court said national courts had to carry out an objective analysis of the amount of costs and whether it might be considered excessive. Factors for the national court to consider were the situation of the parties, whether the claimant had a reasonable prospect of success, the importance of the environmental issues in question, the complexity of the law and procedures and the existence of a protective costs regime.
Judge Hedigan noted that the requirement of a “reasonable prospect of success” under the European Court's test is much lower than the classic test as set out in McNamara v. An Bord Pleanála (No. 1) [1995] 2 ILRM 125, i.e. reasonable, arguable, weighty, not trivial or tenuous. Judge Hedigan said “I think that when the European Court refers to a reasonable prospect of success, it requires that an applicant should be pressing a case that does have a certain measure of substance to it. It is not required that there be a probability of success but there must be, it seems to me, a least a good chance of success.”
Granting the PCO, the judge concluded that the costs in the case were likely to be very high; the case did have a reasonable prospect of success in line with the ECJ's test; the issues at stake were very important to the applicant specifically and for the protection of the environment generally; the law involved was very complex and it was assumed legal aid wasn't available to the applicant.
The judge also set out a series of procedural steps that should be taken by future protective costs order applicants, such as submitting a broad statement of the applicant's financial position, and the reasons why s/he believed there was a reasonable prospect of success.
PILA works to reduce and raise awareness about the barriers to public interest litigation in Ireland. Costs are one of the most significant barriers to potential public interest litigants.
Click here to read PILA's FAQ about protective costs orders.
Click here to read PILA's 2010 report The Costs Barrier & Protective Costs Orders