The Court of Appeal has dismissed an appeal of a High Court decision to grant a protective costs order (PCO) under environmental legislation. The Court reaffirmed the role of PCOs in accessing justice in environmental litigation and clarified some of the underlying principles and factors to be considered by courts when granting PCOs.
The applicant claims that the defendants are operating a quarry without necessary planning permission, contrary to the Planning and Development Act 2000, and is seeking a planning injunction. To assist in this claim, the applicant successfully applied for a protective costs order at the High Court, before the main hearing of the case. In environmental litigation, protective costs orders are covered by ss. 3, 4 and 7 of the Environment (Miscellaneous Provisions) Act 2011. The Court of Appeal heard the appeal of this order.
In its judgment the Court found that the High Court did have jurisdiction to grant a protective costs order under s.7 of the 2011 Act, because the case fell within the scope of s.4(1). Additionally, it found that the making of the order was not premature, as was claimed by the defendants. They claimed that many important factual and other issues remain to be determined in the proceedings. The Court of Appeal recalled that s.3 applies “at any time before, or during the course of” proceedings. The Court reaffirmed that the 2011 Act intends to facilitate access to justice by modifying the traditional costs rules, which were seen as inhibiting environmental litigation of this kind. The protective costs regime is designed to facilitate early applications to court so that the litigant is aware of what costs to expect from the often complex and time-consuming cases. Thus, to refuse an application for a protective costs order at the early stages of litigation “would effectively undermine and frustrate” the purpose of the 2011 Act.
The Court of Appeal also found that the limited financial information provided by the applicant was not a sufficient reason for the High Court to refuse a protective costs order. “An adverse costs order in litigation of this complexity and likely duration would financially cripple all but the most affluent.” So while the applicant should have furnished more details, the omissions were not considered critical to the application.
The Court of Appeal refused the appeal and upheld the protective costs order of the Baker J in the High Court. The substantive issues of the case are due to be heard by the High Court in April 2015.
Click here to read the full decision in McCoy & Anor v Shillelagh Quarries Ltd & Ors [2015] IECA 28