Special Costs Rules
Costs Borne by Respondent
The Aarhus Convention is a Convention in relation to access to in information, public participation in decision-making and access to justice in environmental matters. Judges are to take note of and apply the terms of the Convention.
The Convention, to which Ireland is a party, requires access to court in certain environmental matters to be by procedures which are not prohibitively expensive. The Aarhus Convention’s special cost rules apply to judicial reviews of decisions, actions or omissions under certain EU environmental legislation and national law implementing it.
Generally, in a challenge under the relevant legislation, each party generally must pay its own costs regardless of the outcome. In the proceedings concerned, special costs rules apply, and each party (including any notice party) shall bear its own costs.
In the usual way, the costs of the proceedings, or a portion of such costs, as are appropriate, may be awarded to the applicant/ plaintiff to the extent that he or she succeeds in obtaining relief. The costs shall be borne by the respondent/ defendant or any notice party to the extent that the acts or omissions of the respondent/defendant or any notice party contributed to the applicant, or as the case may be, the plaintiff, obtaining relief.
A court may award costs against a party in proceedings to which the rule applies if the court considers it appropriate to do so—
- where the court considers that a claim or counter-claim by the party is frivolous or vexatious,
- by reason of the manner in which the party has conducted the proceedings, or
- where the party is in contempt of the court.
This does not affect the court’s entitlement to award costs in favour of a party in a matter of exceptional public importance and where in the special circumstances of the case, it is in the interests of justice to do so.
Civil Proceedings Covered
The special provisions as to costs apply to civil proceedings instituted by a person—
- for the purpose of ensuring compliance with, or the enforcement of, a statutory requirement or condition or other requirement attached to a licence, permit, permission, lease or consent, or
- in respect of the contravention of, or the failure to comply with such licence, permit, permission, lease or consent, and
- where the failure to ensure such compliance with, or enforcement of, such statutory requirement, condition or other requirement or such contravention or failure to comply has caused, is causing, or is likely to cause, damage to the environment.
Damage to the environment includes damage to all or any of the following:
- air and the atmosphere;
- water, including coastal and marine areas;
- soil;
- land;
- landscapes and natural sites;
- biological diversity, including any component of such diversity, and genetically modified organisms;
- health and safety of persons and conditions of human life;
- cultural sites and built environment;
- the interaction between all or any of the matters specified in paragraphs (a) to (h).
The above provisions do not apply—
- to proceedings, or any part of proceedings, in which damages are sought, arising from damage to persons or property, or
- to proceedings instituted by a statutory body or a Minister of the Government.
Licences / Consents Covered
This special costs provisions apply to—
- a licence, or a revised licence, granted under section 83 of the Environmental Protection Agency Act 1992 ,
- a licence granted pursuant to the special costs provisions2 of the Act of 1987,
- a licence granted under section 4 or 16 of the Local Government (Water Pollution) Act 1977 ,
- a licence granted under section 63, or a water services licence granted under section 81, of the Water Services Act 2007 ,
- a waste collection permit granted pursuant to the special costs provisions4, or a waste licence granted pursuant to section 40, of the Act of 1996,
- a licence granted pursuant to section 23(6), 26 or 29 of the Wildlife Act 1976 ,
- a permit granted pursuant to section 5 of the Dumping at Sea Act 1996 ,
- a licence granted under section 40, or a general felling licence granted under section 49, of the Forestry Act 1946 ,
- a licence granted pursuant to the special costs provisions0 of the Radiological Protection Act 1991 ,
- a lease made under section 2, or a licence granted under the special costs provisions of the Foreshore Act 1933,
- a prospecting licence granted under section 8, a State acquired minerals licence granted under section 22 or an ancillary rights licence granted under section 40, of the Minerals Development Act 1940 ,
- an exploration licence granted under section 8, a petroleum prospecting licence granted under section 9, a reserved area licence granted under section 19, or a working facilities permit granted under section 26, of the Petroleum and Other Minerals Development Act 1960 ,
- a consent pursuant to section 40 of the Gas Act 1976,
- a permission or approval granted pursuant to the Planning and Development Act 2000.
Application for Cost Protection
A party to proceedings to which the special costs provisions apply may, at any time before or during the course of the proceedings, apply to the court for a determination that the special costs provisions apply to the proceedings. Where an application is made, the court may make a determination that the special costs provisions apply to those proceedings.
The parties to such proceedings may, at any time, agree that the special costs provisions apply to those proceedings. Before special costs proceedings are instituted, the persons who would be the parties to those proceedings if those proceedings were instituted may, before the institution of those proceedings agree that the special costs provisions apply to those proceedings.
An application is by motion on notice to the parties concerned.
EIA SEA & IPPC
The Planning and Development Act 2010 introduced a similar special costs procedure for environmental impact assessment, strategic environmental assessment and integrated pollution prevention and control licensing. The environmental impact assessment directive provides that the review procedure must not be prohibitively expensive. Similar provisions are provided in the public participation directive. The European Court of Justice found that the possibility of discretion under the rules of the Superior Court in making costs order was insufficient to comply with the requirement.
In cases involving the Environmental Impact Assessment (EIA), Strategic Environmental Assessment (SEA), and Integrated Pollution Prevention and Control directives (IPPC), an applicant for judicial review of a decision will generally not be liable for their costs if they lose and may be entitled to their costs from the losing party if they win. An applicant may also be awarded their costs in cases of exceptional importance and where it is in the interests of justice.
The legal challenge must relate to one of the relevant EU directives. The Supreme Court has held that there is no basis in the Planning Act of the Aarhus Convention for the splitting of costs where some grounds/ issues raised in the proceedings relate to the listed EUDirectives, and others do not.
Costs may be awarded against a party in these cases if the court considers it appropriate to do so
- because the Court considers that a claim or counterclaim by the party is frivolous or vexatious,
- because of the manner in which the party has conducted the proceedings, or
- where the party is in contempt of the Court.
The above does not affect the court’s entitlement award cost in favour of a party in a matter of exceptional public importance where in the special circumstances of the case, it is in the interests of justice to do so.
Proceedings relating to Information Regulations
Applications under the Access to Information on the Environment regulations are subject to the special cost rules except where they are brought by the Commissioner for Environmental Information. It applies to proceedings instituted by a person relating to a request referred to in Regulation 6 of the Information Regulations. This does not apply to proceedings instituted by the Commissioner for Environmental Information or a public authority pursuant to the Information Regulations.
The provisions also apply to—
- proceedings in the High Court by way of judicial review or of seeking leave to apply for judicial review of the above type of proceedings,
- an appeal (including an appeal by way of case stated) from the District Court, Circuit Court or High Court in any proceedings referred to, and
- proceedings for interim or interlocutory relief in relation to any such proceeding.
A party to this type of proceedings may before or during the course of the proceedings apply to the court for a determination that the special costs rule applies. The court may thereupon make the determination. The parties may agree that the costs rule applies. Where proceedings subject to the special costs rules are commenced, persons who would be parties if they were brought may agree that the special cost rules applies.