Introduction

The case of Joyce-Kemper v An Bord Pleanála & Ors (Approved) [2022] IEHC 349 was adjudicated by the High Court of Ireland on June 10, 2022. This judicial review revolves around the grant of planning permission by An Bord Pleanála to Irish Water for the construction and operation of a sewerage scheme and waste water treatment plant in Clonshaugh, North Dublin, and a marine outfall pipe at Portmarnock.

The principal issues in this case pertain to the discounting of legal costs awarded to the applicant, Sabrina Joyce-Kemper, following the partial success of her judicial review application. The case explores the application of the Supreme Court's decision in Connelly v An Bord Pleanála [2018] IESC 36, the influence of the Aarhus Convention on cost awards, and the procedural aspects related to leave to appeal on costs.

Summary of the Judgment

Judge Humphreys presided over the case, addressing the question of whether leave to appeal should be granted concerning the cost discounting applied in favor of the applicant. The High Court examined the background of the case, which involved multiple judgments by Judge Allen, including the initial refusal of a recusal application, the quashing of the planning decision on specific grounds, and the eventual remittal of the matter back to An Bord Pleanála.

Ultimately, the High Court granted leave to appeal on the costs issue, recognizing the significant legal questions raised about the methodology of cost discounting and its alignment with both national and EU law, specifically the Aarhus Convention. The Court emphasized the exceptional public importance of these questions and the necessity for clarification at the appellate level.

Analysis

Precedents Cited

The judgment extensively references several key precedents that have shaped the legal landscape regarding cost discounting in judicial reviews:

• Connelly v An Bord Pleanála [2018] IESC 36: A Supreme Court case that established a framework for discounting costs based on the success of the applicant's points in judicial reviews.
• Flannery v An Bord Pleanála (No. 3) [2022] IEHC 327: This case provided further interpretation of Connelly, particularly emphasizing when discounting should or should not apply.
• Cork Harbour Alliance for a Safe Environment v. An Bord Pleanála [2022] IEHC 231: Summarized legal principles relevant to certification and leave to appeal in judicial reviews.
• Klohn v An Bord Pleanála [2018] CJEU C-167/17: A Court of Justice of the European Union case that clarified the application of the Aarhus Convention regarding prohibitive costs in environmental judicial reviews.

These precedents collectively inform the Court's analysis, particularly in assessing how costs should be awarded when an applicant achieves partial success in judicial reviews and how these awards intersect with EU obligations under the Aarhus Convention.

Legal Reasoning

The Court's legal reasoning centers on interpreting the scope and application of the Connelly principles in the context of judicial review costs. Key points include:

• Application of Connelly: The Court agrees with Allen J. that Connelly should apply not automatically but in circumstances where the applicant fails to win a majority of significant points or loses discrete interlocutory issues.
• Substantial vs. Unmeritorious Points: The distinction between substantial and unmeritorious (unsuccessful) points is pivotal. The Court upholds the view that "unmeritorious" aligns with unsuccessful points, not necessarily trivial or frivolous ones.
• Methodology of Discounting: The Court delves into whether discounting should be based on the number of points won versus their significance and whether numerical or time-based methodologies are appropriate.
• Aarhus Convention Considerations: The Court evaluates whether the discounting of costs breaches the Aarhus Convention's stipulations on not making judicial review prohibitively expensive, especially regarding the solicitor-client balance left with the applicant.
• Leave to Appeal: Recognizing the complexity and public importance of the questions raised, the Court grants leave to appeal, anticipating the need for appellate clarification on these intertwined legal issues.

Impact

The judgment in Joyce-Kemper v An Bord Pleanála has several significant implications:

• Clarification of Cost Discounting: The case underscores the necessity for a nuanced approach to cost discounting in judicial reviews, ensuring that applicants are not unduly burdened financially when achieving partial success.
• Aarhus Convention Alignment: It brings to the forefront the importance of aligning national cost award practices with EU obligations, particularly the Aarhus Convention's requirements for accessibility and affordability of environmental judicial reviews.
• Appellate Jurisprudence: By granting leave to appeal, the High Court paves the way for higher courts to refine the principles governing cost discounts, potentially leading to more equitable outcomes in future cases.
• Procedural Guidance: The case highlights procedural considerations, such as the timing and appropriateness of referencing EU law in appellate processes, offering guidance for future litigation strategies.

Complex Concepts Simplified

Cost Discounting

Cost discounting refers to the reduction of legal costs awarded to a party in judicial proceedings based on the extent of their success. In judicial reviews, if an applicant does not prevail on all their claims, the court may reduce the costs they are entitled to recover.

Aarhus Convention

The Aarhus Convention is an international treaty that grants the public rights regarding access to information, public participation, and access to justice in environmental matters. It ensures that legal proceedings, including judicial reviews, are accessible, equitable, timely, and not prohibitively expensive.

Leave to Appeal

Leave to appeal is a permission granted by a court to allow a party to take their case to a higher court. It is typically required in cases involving significant legal questions or where the appeal has broader implications beyond the immediate parties involved.

Judicial Review

Judicial review is a legal process where courts examine the lawfulness of decisions or actions taken by public bodies. It ensures that such decisions comply with the law, are made fairly, and respect the rights of individuals.

Solicitor-Client Balance

This term refers to the financial relationship between a solicitor and their client, particularly concerning the costs a client may owe to their solicitor if they do not fully succeed in legal proceedings.

Conclusion

The High Court's judgment in Joyce-Kemper v An Bord Pleanála [2022] IEHC 349 serves as a pivotal moment in Irish administrative and environmental law, particularly regarding the financial implications for applicants in judicial reviews. By addressing the intricate balance between cost awards and adherence to the Aarhus Convention, the Court emphasizes the need for a fair and proportionate approach to cost discounting. The decision to grant leave to appeal underscores the exceptional public interest in clarifying these legal principles, potentially influencing future cases and fostering greater accessibility to justice in environmental matters.

Moreover, the case highlights the evolving interplay between national legislation and international obligations, urging courts to navigate these waters carefully to uphold both domestic fairness and international commitments. As appellate courts deliberate on the issues raised, this judgment will likely shape the contours of judicial review cost management, ensuring that the pursuit of environmental justice remains both attainable and equitable.